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THE 

DIGEST OF JUSTINIAN 



G J. CLAY AKD SONS, 

CAMBRIDGE TOIVEBSITY PBESS WAREHOUSE, 
AYE MAHTA LANE, 



STEVENS AND SONS, LIMITED, 
i> 120, OHAKOEBY LANE. 




90, WELLINGTON STREET. 

F- A, BEOCKHATT8. 
^tto %0t]tt THE MAOMILLAN COMPANY. 
gimtog 0nn ffalcuttat MAOMILLAN AND Co., LTD. 



[All rights reserved.] 



THE 

DIGEST OF JUSTINIA 



TRANSLATED 



BY 



CHARLES HENRY MONRO, M.A. 

FELLOW OP GONVILLE AND CAIU8 COLLEGE CAMBRIDGE 
BARRISTER AT LAW 



VOLUME I 



Cambridge 

At the University Press 

1904 



PRINTED BY J* AND 0. P, CLAY, 
AT THE UNIVERSITY PRESS. 



PREFACE. 



Volume is an instalment of a Translation of the Digest 
JL of Justinian, and, if circumstances are favourable, I hope 
it may be finished in the course of a few years, either by the 
present writer or by another. A few words have to be said 
as to the general design and method of the work. Something 
is always gained and something lost by the use of a translation. 
The gain is the obvious ^saving of time and trouble for those 
whose knowledge o the original language is imperfect, indeed 
even for others ; the loss is that of the tone and spirit of the 
original This at least and at the best; but there is also the 
possibility of the translation being incorrect, while all clUe to the 
true meaning is efl&ced, A translator must hope to obviate these 
dangers as best he may by taking care ; but there is one sottr6e of 
embarrassment which requires to be treated with special tact and 
judgment, I mean the occutren<5e of technical expressions. How 
are these to be rendered ? There are several waya of dealing with 



Krst, they catt be left untranslated and simply given in the 
original ; &ttd, if one universal naethod is to be followed throtigh- 
out, I believe this to be the best. Secondly, the Latin expression 
can be translated by the name of, the nearest corresponding 
institution in English law, and this plan, on the game supposition, 
I believe to fa the , worat T3hirdjy, the Jjatm teiro P$%y, tye 



vi Preface 

interpreted, i.e. rendered by a kind of explanatory substitute. 
This is very common in the German translation edited by 
Otto, Schilling and Sintenis, far the best, I believe, existing ; in 
which, however, to give one example, the Latin word adoptare 
is constantly rendered 'an kindes statt annehmen/ to take on the 
footing of a child; a kind of version which leaves the reader 
.with a peculiar sense of unsatisfied want There is yet another 
method; an English expression may be used, but it is felt at 
the same time tljat it is not to be taken as a translation at all, 
strictly speaking; it is meant to represent the Latin word in a 
more convenient form, not to interpret it. One very simple 
example of this occurs where the original is somewhat lengthened 
or shortened or otherwise modified, in a way which often gives 
rise to a recognised English word, though not always; take the 
terms inofficious, agnate, compensation. The last is no doubt an 
English word, but it docs not translate the Latin word from 
which it is derived* This procedure is a fertile source of inaccuracy 
and misunderstanding, but we cannot afford to discard it ; we 
must, of course, bear in mind, to take an example, that, where the 
English word * heir ' stands for heres, it is not used in its ordinary 
sense* No rule, I should say, ought to be followed exclusively ; 
on the whole, however, the plan which I have preferred is to 
go chiefly by the first, so far as to give the Latin expression, 
though to a considerable extent following the third also ; but it 
wiU be desirable to add a Glossary of the Latin technical terms 
used at the end of the present work* 

As hinted, a certain freedom should always be maintained ; 
even the second of the above methods need not be absolutely 
excluded; as, for instance, where the institution named is one 
whose precise nature is imraaterfal to the main subject under 
discussion, or the correspondence is really exact 

It need perf&ps hardly be said that anyone who wi&hes 
thorcmghty, or as fcff as he can, to understand the Digest itoquires 
a great deal more infarmatiott than can be supplied by the beat 



Preface vii 

possible translation. Many passages are difficult to comprehend, 
or indeed are incomprehensible, because the reasoning is involved 
and abstruse, or the text is corrupt, or there is an interpolation 
made by an incompetent or ill-advised person. With these matters 
the translator as such has very little concern. If the reasoning is 
complicated or hopelessly obscure, his aim should be to make the 
English version present precisely the same obscurity and to pre-. 
serve as well as he can such means of removing it as the passage 
itself in his judgment presents. Where the text is corrupt, he 
should call attention to the fact, unless the corruption is too 
insignificant and the sense is plain ; and it will often be advis- 
able to offer some more or less conjectural reading by way of 
emendation. The best Editor of the text, I mean Mommsen, 
has suggested many such readings, most of which are adopted, 
i.e. mentioned, in the following pages. It should perhaps be here 
noted that although emendation proposed by a competent person 
is commonly of value as an expression of opinion as to the 
meaning of the true text, which it purports to supply, still an 
emendation which introduces, say, half-a-do0en words arrived at 
by conjecture, however worthy of attention, is in many cases, 
perhaps in most, very unlikely to be the true reading. The 
subject of interpolations has been treated with ability and to 
good effect by recent writers, Gradenwitz and others, and is 
of considerable interest ; but an interpolated passage is still an 
integral part of the Digest, and has to be translated accordingly. 

This leads to the question what is the text here translated ; to 
which I have merely to say that it is, as may be supposed, taken 
from Mommsen, and almost entirely from his later single column 
edition, with, at the foot of the page, the greater number of the 
corrections or emendations suggested by him* These are marked 
in a note with the letter M, where the Editor expresses no doubt, 
the expression "C M" signifying that he shows some hesitation. 
I have ventured occasionally to suggest my own emendation, with- 
out adding any explanatory naark. 



viii Preface 

I have translated what may be called Justinian's prefaces, three 
in number, which describe the scheme and occasion of the Digest 
and other works, as well as the Emperor's plan of education for 
legal students; they consist of three 'Constitutiones' or enact- 
ments, commonly distinguished by their respective initial Latin 
words. The third of them, the Comtitutio Tanta, appears to be a 
free version of a Greek text, which itself is also preserved This 
last I have not thought it necessary to translate ; a modern Latin 
version is given in Mommsen's stereotype or double column edition. 

I have to thank Mr Buckland of Oaius College for a number of 
useful hints vouchsafed during the course of the work. 

I cannot close this prefece without expressing my sense of the 
immense debt owed by all those who concern themselves with the 
things of Ancient Rome to the illustrious scholar, legist and 
historian who has lately been taken from us, Theodor Mommsen. 



0. a MONRO, 



OAHBBIDQE* 

April, 1904. 



CONTENTS. 



PAttK 

Tho formation of the Digest. 

Constitutio " Deo auctore " . xiii 

Constitutio " Oninem " . . . . . xviii 

Tho confirmation of the Digest 

Constitutio "Tanta" ....... xxv 

L 

I. On justice und law. (L>eju#titittvt,jure.} ..... $ 

II. On the origin of law aud of the different magistracies, as well as 

the succession of thoHo learned in the law* (De urifffae 
juris vl omnium WMyiatrfrtuttW, et sitccewione prudeittium.) (> 
II L On statutes, decrees of the Senate and long usaga (t><i foffttw* 

tiwHulmqiw wmsaltitt <>t iangu ccynwetudine.) t i# 

IV. On Imperial enactments (D& conttiMiiMibus principum.) . 25 
V", On status. (De fyatu fymwwn.\ ...... 24 

VI On persons *ui juriv and alwnt juris. (De h'w gut wi wl* 

atieni juris 8^lnt.) . .... 2K 

VIL Concerning adoptions and emancipations and other methods by 
which tMtwtfut IH diHsolved. (De ttdopthmibutt et wnanct* 
paUonibns #t, alutt modls quibiw poietttas solritttr.) . 31 
VIII. On the division of things and their respective natures. (Dc 



IX. Concerning Honators. (/> Setuttoribitft,) ..... 44 

X, On the offico of Consul (De (jffittfo OwiMtlis.) ..... 45 
XL On the office of Prufcfectus Pnetorio. (De qfficio Prjitfltoti 

Pr&torio.) , ...... 4f> 

XIL On the office of IWectus Urbi. (De qfficio Pretftott Wrbi.) . 40 

XIIL On tlie office of Qtwestor* (JDe officio Quaxtori*,) . ^ . 48 

XIV, On the office of the Tractors, (&e <>$<&> Pw^orwm.); V - * W 

XV* On the offico of Prwfoctus Vfgilum, 0* tftetoyi, 



XVI. On the office of Proconsul and Legate. (X>* offiwo Pr\ nudist 

'* 



XVII. Ou the office of Pnofoctus Augustalis, (De offltio 

Au$n**Mi>) .,,.,... f 56 

XVIIL On the office of Prajsos, (De uffitio Prwndte.} . |Ji . 06 

XIX* On the office of Imperial Procurator or Rational!*. (De qffi#io 

procurators Cw*ari* vel Rationalix.} ,*.... 6S 

a 5 



Content* 

On the office of Juridicus. (De offidv JttridicL) , , PA< *" 
XXL On the office of one to whom jurwdietion fo delegated. (/)** 
tffiiotfwcuimatttfatawtJnrfalietiu.) .... 
XXII. On the office of asHessorH. (De vffiriv .-* * 



11. 

I. On Jurisdictio, (TV Jnri*dic.twn?.) 

II. A man to be dealt with after the like rule to that which he *' 

maintained against another. (Qw*d yuM/tv jnri* hi 
tdterum *tattwrit nt ijnmt tnkm jurt ut<ttur.) 

111 Whore a man refuHOt* obedience to the magistrate exercining ^ 
jwrifldietion. (SV r/nix JIM tHwuti IHM rfttempwwwit,} . W|> 

IV, On citation. {JJrtHJit* rtwuufa) 

V. Where one who ia cited iails to appear ; alw> where a man citoa 

one whom, according to the Hitict, he haB no right to cite. 
' to jtw watn mm writ, wVu r/mV mm 



...... 

VI. Persona cited tuitnid t4i appear or ele give a guarantee or an 
undertaking, (fn ju* ntcati ut mnt atU *ttiia id cauium 



VII. No one to roleatK) by force a man who is cited (Me qui* <tum 
t/tii in ju* iwtihttur pi Mimat.) 1 ..... 

VIII. What penouH reniiectively ary coitt|ie!ie>l to give a guarantee or 
{>romi*e on uath or are remitted t< u^iiuftle jiwmtoe. (Qui 
Htfittdarfi aiganluf wt jurato j#nittttnt r*l ttttttf promt** 
tioni conmittamtw.) ...... t , 

IX, Nttere |tto tadertking given In the eaae of a noxat action. B " 

(Si m nossali cam* agatur gtwmtidmMhm mmKur.) , 

X. On one the contrive* that a defendant nhai! wot appear, {/te 

*o |ur <//wi fttdum wit qttomhiu* i/t<i* in jutifrw twUtt,) ( . 

XL Where i. man fails to ohgerve au un<U'rtHkujg to apjar to an 
(*SV </wt* cartfaniJhtM In jwtiri'i Kitttetuli mum 
mm 



, ...... 

On fettt-dayi, wyournmontH and dHFeruia mnuuiiw, i/hfirii* 



<f <tiwr*t* 
XIIL Oft tfcnumt of particularn and di*cvnry f duciuuentH et*-. 




XIV. 

XV. On cfotpromhitiK and compounding Wfitrttttwtiwnbti*.) , , 

HI. 

L Otmgwona. (&* poittttfandu,) ... , 

HI. On ^procoratot* and "defennora." (/> prttfnrtttttr&w *t \ 

( 

*'*'' l . 153 



Contents xi 

PAGE 

IV. On proceedings taken on behalf of any corporation or against 
the same. (Quwl nyiwcumyue uniwrBitati* nomine eel 

centra IHI ayatwr.) ........ 172 

V. On neyntia gexta (voluntary agency). (De negotiis gestw.) . 175 

V On vexatious actions. (De calumniatoribits.) .... 1^7 



I. On restitutions in inteyrum. (De in inteyrum restltutionibus.) 201 
IL Acts done through fear. (Quod metw causa gestum erit ) . 203 
I IJf. On tfoluit maim. (De dolo main.) ...... 21f> 

IV. On persons under twenty-five. (De minoribns oigintt quitiqw 

aunts.) ... . ... 226 

V. Dn&tpitismintrtio. (Da capita mintotfo.) ..... 253 
VI* Groimtta on which restitution in uiteyrum is allowed to portions 

over twenty-five yours of age. (JSje qidbm causlx mqlvrwi 
rtffhtii quinque finnw In integrttm rejtitiiitntur.) , . 25<J 

V I J, On tranaferH made for the purpose of varying the condition* of a 

trial. (De tilwnatione jitdieli mutattdi causa facta*) . 270 

VI H. On matters referred; on perwonn who undortako arbitrations 

witli a view to pronouncing an award (De receptin ; yui 
arbttrhim MMjterint ut, wnlentuim dicanL) . 274 
IX. Keauion, innkeepers, stublekoeperft to rentorc what they receive. 

(Afautw GJtupunG* xtiipidani vt rwpta r&tlitoWHt.) * . 294 



v. 

L On trials at law ; OH to whore a man ought to take proceedings* 
or bo miofl. (Dtijndifiisi tthi qiuwnw ay aw, rvl e<mrwwri 
tMwt.) ......... ,300 

I L < hi inofficious tehtawontn. (Dv iHt$teiwtj tMliumwfa) . ^SO 
III* On the action for recovery of un inheritance, (De heredtiati* 



IV, On HttitB For partrt of an inheritance. (S7 JMM ker$dita$* 



V, < )u the 

Ml* 

VI. <) the fittoi-eonmthfiury i$titw fawtUMi*, (Ik 



VI. 



I. On HtHKiific viitUicaUoHK. 

II. On tlie Pubiiclun action In rw*. (Dfi PvMtttaiw In mu wtirm*.) 

III. On actions to rocovor voctif<idiaii Uiat in emphyteutic- land* 

id 



ERRATA. 



p. IS, 1. 17 from bottom of page, for entitled road intitltd* 
p. 26, 1L 8 5 for M month* read {?< $fa* atventh month. 
p. 46, L 4, for [ ] read ( ). 
p. 67, 11. 9, 21, do. 
p. 76, 1* 6, do. 

p. 88, 11. 8, 10, do. 

p. 112, 1. 17 from bottom of page, for Maviu* read M<rius. 
p, 161, L 10 from bottom of pa^e, for read />, 
p. 175, 1. 14, for [] read {). 
p. !!)<">, 1. 18, for JavoUmu* read Jawlenm, 

p. 219, 11. 6, 7, for and *o my MM if roag * at / f^vf tl$ application. 
p. 219, L 11, after coUmhn int-tort (i mUuxitM <'Kt)> 
p. 230, 1. 8, for prtwripth read #w*cripti*. 
L 19, dl. 




p, 266?, 8, J 1^L ftrtfr two (wmffiw. 

p. 276, 2. 14, for both tifo$ read each tide. 

p. 880, 11. 6, 7 from bottom of page, del comma*. 

p. #81, L 15, del, mark of interrogation. 

p. &54, L 7, after vendor insert mark of interrogation. 

p, 888, L 6, after btqwatfa, for *& read a. 



xiu 



ON THE PLAN OF THE DIGEST. 



CONST1TUTIO DEO AUCTOR& 

The Emperor Omar Flavins Justinianus piouz happy 
renowned Mttqueror w\d triumpher ever Awgwtus 
greets Trihanianw his qwmtor* 



under the authority of God our empire, which was 
delivered to us by His Heavenly Majesty, we prosecute wars with 
sueeeiw, we adorn peace, we bear up the frame of the State, and we 
ao lift up our minds in contemplation of the aid of the omnipotent 
Deity that we do not put our trust in our arms, nor in our soldiers, 
0or in our leaders In war, or ia our own skill, bat we ret all oar 
hopes in the provideote of -ine Supreme Trinity alone, from whence 
proceeded the elements of the whole universe, and their disposition 
throughout the orb of the world was derived- L Whereas then 
there i in all things nothing found HO worthy of respect as the 
authority of enacted law, which disposes well things both divine 
and human, and expels all iniquity, and yet we find the whole 
course of our statutes, such as they come down from the foundation 
of the city of Rome and from the days of Romulus, to be in a state 
of such conftusion that they reach to an infinite length and surpass 
the bounds of all human capacity, it was therefore our first desire 
to make a beginning with the most sabred Emperors of old times, 
to amend their statutes, and to put them in a cleat* order, so tha* 
they might be collected together in one book, and, being divested 
of all superfluous repetition and most inequitable disagreement* 
might afford to all mankind the ready resource of their unalloyed 
character, 2. This work being accomplished and put together & 
one volume under our own brilliant name, hastening as we do 66 
lift ourselves above scanty and somewhat unimportant Matter* a& 
to arrive at the fall and supreme amendment of the fowy so a* I* 
amend and rearrange the entire Roman judsprudUmoe atet topflwfetrt 



xiv Constitutio Deo auctore 

in one volume the scattered books of a number of authors, a thing 
which no one ever dared to hope or to desire, the task appeared to 
us to be one of great difficulty, indeed to be impossible. However, 
we lifted our hands to Heaven, and, praying for the Eternal aid, 
we embraced this enterprise in our minds, trusting to God, who is 
able in the magnitude of His goodness to grant and complete 
achievements well-nigh desperate. 3. Hereupon we bethought us 
of the excellent service of your wholehearted character, and com- 
k mitted to you before others this additional work, having received 
proofs of your ability from the composition of our Code, and we 
ordered you to choose as companions in your labour whomsoever 
you thought right out of the number of the accomplished pro- 
fessors as well as of the most eloquent of the robed men of the 
forum, men of the most honourable position. The above persons 
being accordingly got together and having been introduced into 
our palace and accepted favourably by us on the strength of your 
testimony, we have entrusted to them the execution of the entire 
plan, it being however understood that the whole should be carried 
out under the management of your most watchful mind. 4. You all 
therefore have our order to read and to work up the books dealing 
with Roman law left by the learned of old time to whom the most 
sacred Emperor allowed the privilege of writing and interpreting 
rules of law, so that the whole substance jtnight be taken from 
them, all repetition and all discrepancy being as far as possible got 
rid of, and hereupon a single and sufficient result might be pre- 
sented in the place of the scattered materials which preceded. 
Whereas, on the other hand; other authors have written books 
dealing with law, but their writings have not been received or used 
by any later authorities, we ourselves are not concerned to let 
their works affect our resolution, 5. The above matter being 
composed under the Supreme indulgence of the Deity, it is only 
right to set it forth in a work of great beauty, consecrating thereby 
an apt and most holy temple of Justice, and to distribute the 
whole l^w into fifty books and distinct titles, in imitation of our 
Code of Imperial enactments and also of the Perpetual Edict, as 
&r as tfrift may prove in your opinion to be the more convenient 
course?, so that there may be nothing left outside the above-men- 
tioned compilation, but the entire ancient law, in a state of confusion 
for some fourteen hundred years and now by us made clear, may 
be, so to apeak, enclosed within a wall and have nothing left outside 
it; all legal authors enjoying the same rank and no superior 
authority being kept for any one of them, since it cannot be said 



Oonstitutio Deo auctore xv 

that any of them are either better or worse in all respects, but only 
particular writers in particular respects. 6. You must however, 
when comparing a number of authors, not pronounce upon the 
work of one as better and juster, as it is possible for the opinion of 
one writer, and that one of inferior merit, to be preferable in some 
points to many and even better authors. For this reason opinions 
which are 1 cited in the notes to JEmilius Papinianus, taken from 
Ulpianus and Paulus, not to speak of Marcianus, which once were 
allowed no weight in consequence of the honour due to the most ' 
renowned Papinianus, ought not to be at once rejected, but if you 
see that anything taken from them is necessary to supplement the 
labours of Papinianus of supreme genius or to interpret his writings, 
you must not hesitate to set it down as being as good as law ; so 
that all those most learned authors whose work is embodied in this 
book may have as much authority as if their lucubrations were 
derived from Imperial constitutions and had been uttered by our 
own divine mouth. We are justified in ascribing everything to 
ourselves, seeing that it is from us that all their authority is 
derived; and one who amends anything which is done with a 
want of exactness deserves more credit than the original author. 
7* There is another thing of which we wish you to make a special 
object ; if you find anything in old books which is not wdl placed, 
anything superfluous pr wanting in finish, you should get rid of 
unnecessary prolixity,- fill up what is deficient, and present the 
whole work in apt form and with engaging appearance. You 
should at the same time further observe this ; if, in the ancient 
statutes and enactments which old writers cited in their books, you 
find anything expressed incorrectly, you must rectify it and put it 
in proper form, so that whatever is chosen and set down by you 
may be deemed genuine and the best version and be treated as 
if originally written, and no one is to take upon him by reference 
to the ancient text to argue that your version is fiwilty. Con- 
sidering indeed that by an ancient enactment, the so-called Lex 
Itegia, all legal authority and all power vested in the Roman people 
were transferred to the Imperial Government, and we do not 
attribute our collective legislatorial sway to this and that source, 
but desire- that it should beaU our own, how can antiquity interfere 
with our legislation ? In fact, we desire that all the law referred 
to, when once set forth, should be so , folly in force, that where 
anything was put ia one way by tbe old writers, but -appears to 

M. < i J.svj 



xvi Constitutio Deo auctore 

bear the opposite sense in our work, no fault should be found with 
the former, but the whole should be set down to our will and 
pleasure. 8. By this means, in all parts of our aforesaid Code 
there is to be no place allowed to any antinomy such is the name 
used from old time, taken from the Greek language but there 
must be full agreement, full consistency, and no one is to raise any 
dispute on the question. 9. Repetition too, as already said, we 
desire to be absent from a compilation such as this ; and any 
provisions that have been made by the most sacred ordinances, 
which we have inserted in our Codo, we do not allow to be again 
set down as parte of the old law, seeing that the fiat of Imperial 
enactment is quite enough to give them authority; unless indeed 
this should be done by way of contrast or of supplement or for 
more complete exactitude ; but even then it must be done very 
sparingly, lest, if this kind of exception is allowed, a certain amount 
of thorns may spring in such a meadow, 10- Again, if any rules 
included in the old books have by this time fallen into disuse, we 
by no means permit you to set them down, as we wish such rules 
only to be maintained m have been put in force in the most usual 
course of judicature, or have been approved by the long usage of 
this revered City, hi accordance with the work of Salviut* Julianus, 
which points out that all cities ought to follow the usage of Borne, 
the head of the world, and not Homo follow that of other cities. 
Aud by Itome we should understand not nroroly the old city, but 
our own royal city too, which, with the favour of God, was built with 
the best auguries. 11* We therefore order that everything should 
be governed by those two books, one that of Imperial enactments, 
the other that of the law consolidated and amended (jus erwdeatwiri) 
and put together with a view to a book to be made ; adding any- 
thing else that may come to be published by us to serve the use of 
an educational work (institutionee], in order that the immature 
mind of the student, being supplied with simple principles, may be 
the more easily brought to the comprehension of the higher learning. 
12, Our complete work, such as it will be composed by you with 
God's tiosSitft&Ge, we command shall bear the name of Digest or 
Pandecte, wad no person learned in the law shall at any time 
venture to add any commentary thereto and upset by his own 
language the eoncke method of the said book, as was done in old 
time, when, by the contradictory opinions of expositors, the whole 
law was little short of being thrown into confusion ; let It be 
enough to make some few corrections of it by notes and an 
ingenious use of titles, avoiding the occasioning of anything to be 



Constitutio Deo auctore xvii 

complained of that might arise from the habit of interpreting. 

13. Lest moreover the writing itself should hereafter give rise to 
any ambiguity, we command that the text of the book shall not 
be written with the use of the trickery of ciphers and compendious 
conundrums, such as directly and by their mischievous character 

, have occasioned many instances of antinomy, even where what is 
intended to be signified is the number of the book or some similar 
matter; even such things we do not allow to be shown by 
special numerical figures, they must be set out in ordinary letters. 

14. All these things your Wisdom must, with the favour of God, 
endeavour to accomplish, together with other most able men, and 
bring it to a well-conceived and most speedy close, that the com- 
plete book, digested into fifty heads, may be put before us in strong 
and eternal memory of the matter in hand, in proof of the pro- 
vidence of Almighty God, to the glory of our rule and of your 
service. Given on the eighteenth day before the Calends of January 
at Constantinople; in the consulship of the most honourable 
Lampadius and Orestes. 



.vm 



CONSTITUTE OMNEM. 

The Emperor Ccesar JTlavius Justinianus Alamannicits 
Gothicus Frandcus Oermanicus Anticus Alanicus 
Vandalism Africans pious happy renowned con- 
queror cmd triumpher ever Augustus to TheopTiftm 
Dorotheus Theodorus Isidores Anatolius Thdldceus 
and Cratinw honourable mm, professors and to 
Salaminim most eloquent man professor greeting. 

THAT the whole law of our State is now reformed and arranged 
partly in four books of institutes or elements, partly in fifty of 
digests or pandects, and further in twelve of Imperial enactments 
who knows better than you do? and now indeed everything which 
it was requisite either to order at the beginning or to pronounce 
upon when all was complete, with willing acknowledgment of the 
fact, has been fully done by our speeches made both in the Greek 
tongue and in that of the Romans, which speeches we wish to be 
eternal Whereas however you, being appointed professors of legal 
knowledge, ought to be acquainted with this too, what it is that we 
hold necessary to be conveyed to students and at what times, to 
the end that they may thereby be made most worthy and most 
learned; we therefore opine that the present divine address ought 
to be directed to you especially, so that your Wisdoms, and also 
other professors who may choose at any future time to follow the 
same course, may, by observing our rules, tread the distinguished 
path of legal erudition. Now it is without doubt necessary that 
elementary works (institution^ should in all studies claim the 
first place, supplying as they do the first step in every branch of 
knowledge in a short form. Then, of the fifty books of our 
Digest, we hold that six-and-thirty alone are sufficient both for you 
to expound and for youthful students to use for the purpose of 
their education* But we ought in our opinion here to set forth 
the order of arrangement and the method which has to be followed, 
and to remind you of the things which you used to deliver of old, also, 



Oonstitutio Omnem six 

with regard to our recent compilation, to state the way of applying it 
and the proper times, so that nothing relating to this duty may be 
left unknown. 1. Some while ago, as your Wisdoms are aware, out 
of all the immense multitude of rules, reaching to two thousand 
books and three million lines, students, under instruction from 
^ their teachers, generally made use of no more than simply six 
books, and those ill composed and containing very little law 
of any importance, everything else being disused and in fact 
inaccessible to everybody ; these six books included the Institutes 
of our master Gaius and four separate books, one on the old 
law of dotal gifts, another on guardianships, and a third, indeed 
a fourth, on testaments and legacies; and even these they did 
not use throughout ; there were large portions of them which they 
passed by as being superfluous. To students of the first year this 
work was not given in accordance with the order observed in the 
Perpetual Edict, but the subjects were arranged anyhow and all 
in confusion, matters practical and unpractical being mixed up, in 
fact the unpractical matters were allowed the larger space. In the 
second year the order adopted went the wrong way about, they 
were given the first part of the legal rules, some particular titles 
being left out, as it was an absurd thing after the Institutes to read 
anything else than what is placed first in the law and deserves 
to be called the first subject; but after these titles had been 
gone through, though jeven these were not read from the beginning 
to the end, but a selection was made, and that for the most part of 
unpractical pieces, there were other titles set before the students, 
partly from that division of the law which is called juditia (actions 
at law), these again not being taken from the beginning to the 
end, but only so as to afford a meagre catalogue of practical points, 
all the rest of the book being treated as of no consequence, partly 
from that division which is called Things, consisting of seven books, 
in which once more a great many chapters were set on one side out 
of the way of the students, being regarded as unsatisfactory and 
not very well fitted for educational purposes. In the third year 
they bad to take up such subjects in both works, I mean the 
book on Things and the book on Actions, as had not been given 
them in the second year, the two works being taken alternately; 
this famishing an introduction which led to the most excellent 
Papinianus and his Besponsa, which Responga, taken all together, 
extend to nineteen books ; but of these they only took eight books, 
and not the whole contents even of these eight books ; out of a 
great number of rules expressed in ample detail, they were confined 



xx Comtitutio Omnem 

to a few short extracts, so that they had to close the task with 
their thirst unslaked. The above being all which was given them 
by their teachers, the students used to read the Besponsa of 
Paulas for themselves, not taking the whole of them, but adopting 
a fragmentary series which a bad custom recommended, Such 
was, up to the fourth year, all that wan done towards acquiring 
a knowledge of ancient law, [and if j 1 any one wishes to consider* 
what were the things which they read, he will find, on reckoning 
them up, that in that immense multitude of legal rules there were 
scarcely nixty thousand lines on their subject which they read 
through, all the rent being left remote and unknown, and being 
only held worthy of attention to some very small extent when 
either it was required in the course of an action, or you yourselves, 
master** in the law, made a point of reading them, so that you might 
have something letter to show in the way of knowledge on the part 
of your pupila The above then sotH forth the method of education 
in old dayn, as IB fully nhown by your report 2. We however, 
observing thin meagre provision of rules of law, and deeming it a 
very miserable state of things, propose to display the treasures of 
law to such as desire to behold them, so that, when your Wisdoms 
have in some wise turned them to due account, your pupils may 
become amply endowed legal pleadcrn. Accordingly in the first 
year they must [to begin with] take in our Institutes, derived 
as these are from almost the whole body <>T the old institutional 
works and conducted into one clew reservoir out of all their muddy 
sowott) by the tgency of Tribociwws, that most distinguished man 
and magistrate, *xquaeBtor of our sacred palace and ex-consul, 
also by the agency of two of your number, Theophilus and Doro- 
theas, most able professors* For the rest of the year we order, in 
accordance with a very good principle of arrangement, that there 
should be given them the first portion of the law, which is called 
ty the Greek name Trp&ra, there being nothing before it> as, in 
whatever is first cannot have anything else preceding it 
, we lay down, is to be the beginning and the conclusion of 
the ftrrt year's* education ; and we think proper that those who 
4ak it shall not be called by the silly and ri&eokws same of Two* 
pounders (<fcgxwdw) ; they are to be styled New Justinfe&a, 
which appellation, to we decree, is to be used for all time to come, 
so that thote persona who, while yet untaught, aspire to the know** 
ledge of law and cbooae to accept the enactment* of the earlier 
year may take on* name, seeing that the first book is to be given 

1 Cf. M 



Constitutio Omnem xxi 

to them at once, which was published by our authority. The name 
they used to bear was in keeping with the ancient state of con- 
fusion in which the law used to be, but now that it is clearly and 
distinctly presented, so that it can be easily conveyed to their 
minds, it seems requisite that they should enjoy distinction under 
another name. 3. In the second year, for which another name has 
'been already given them by a decree, and one of which we approve, 
we ordain that they should take either the seven books on Actions 
or the eight on Things, according as the alternation of time allows, 
which alternation we wish to be maintained untouched. They 
must take these books, both of Actions and Things, from beginning 
to end, and in their proper order, none of them being omitted, 
as everything is invested with an elegance unknown before, and 
nothing unpractical or obsolete is to be found in them. To each 
of these books, whichever is taken, the one on Actions or the one 
on Things, we desire should be added for the second year's course 
four works in one book each, which we have chosen out of the 
whole compilation of fourteen books, one being taken from the 
larger work in three books compiled by us on the subject of 
dos 9 one from the two books on guardianships and curatorships, 
one from the work in two parts on testaments, and, from the 
seven books on legacies and jftdeicommissa (testamentary trusts) 
and subjects qonneeteji therewith, again one only. Thus those four 
books which we have jpit at the head of the particular compilations 
named above are the only ones which we wish you to put before 
them ; the other ten you must keep back for a convenient occasion, 
as it is impossible, indeed the second year is too short a time, for 
the study of these books to be instilled into them by a master's 
instruction. 4. After this the course of the third year is to .be as 
follows. Whether it happens to the pupils, as the turn comes, to 
read the t>ook on Actions or the book on Things, there must be 
taken at the same time the threefold-arrangement of books on law, 
each being on one subject; in the first plaoe tfcere is to be one 
separate work on ^he, hypothecarian formula, whirfi we have put 
in the best place for it, namely in the part whejr^ we deal with 
hypotbeks, so that, competing as it dpes with Actions on pledge, 
which coj&e *n the books on Things, it may aojt stun their vidoity, 
bath of tbem really dealing with mucli thi^$&me subject After 
this separate work another similar on$ jte,&> be put before theta, 
couppiled by us on the Edict of the JS^&k on the RedJubitori&a 
action, on actions for recovery of projjer<y y and lastly on thp sti|njr 
Iati0u,for double the price, seeix^g ;, tbffc whereas legal provisions 

M* J. & 



xii Constitutio Onmem 

dative to purchase and sale are conspicuous in the books about 
hings, but all the definitions, as we called them, were placed in the 
tst part of the former edict, we were obliged to transfer them to 
le earlier position, lest they should wander further away from the 
eighbourhood of Sale to which they are, so to speak, ancillary, 
'o these three books we have joined the study of that most acute, 
iwyer, Papinianus, whose works students used to take in their 
bird year, though they did not go through the whole series, but, 
ere as well as before, had a few examples given them out of 
aany, selected here and there. With you however that excellent 
,uthor himself will be open for perusal, not only in respect of his 
lesponsa, compiled in nineteen books, but also in the thirty-seven 
>ooks of questions, the two books of definitions, besides the book 
>n adultery, in fact in pretty well the whole of his dissertations 
Jtiroughout the entire array of our Digest in which he excels in 
ii$ own special portions. Then, lest the third-year students, the 
Papinianists, as they are called, should seem to lose their author's 
aame and grace of expression, he has again been introduced for 
the third year by a most exquisite method, as the book about 
hypotheks is one which we had filled throughout with passages 
from the same excellent Papinianus, so that the pupils may take 
their name from this fact and be called Papinianists, and may 
rejoice in memory of him, observing tBe festal day which they used 
to celebrate when they first took his rules ot law, and even by this 
means the memory of that most sublime prsefectorian may abide 
for ever, and the course of study for the third year may herempott 
close, 5. Next, seeing that it is usual for the students in the fourth 
year to go by the conventional Greek name Xtf*nw, they can, if 
they like, keep this title ; but instead of the Besponsa of the most 
learned Paulus, which at one time they used to take in barely 
eighteen books instead of twenty-three, reading them in the con- 
fused way already mentioned, let them now turn all their attention 
to the ten, separate works which remain out of the fourteen which 
we have already described, by which they will acquire a store of 
knowledge much larger and fuller than they ever got from the 
Re&po&fta of Paulus* By this means the whole compilation of 
separate books put together by us and divided into seventeen will 
be taken home in their minds, such as we have set it down In two 
parts of the Digest, the fifth and sixth, according to the division 
foto seven parts ; and what was said at the beginning of my address 
will be found to be true, the object being to make the youths 
perfect after studying the thirty-six books as well as equipped for 



Oonstitutio Omnem xxiii 

every legal purpose and not unworthy of our days. Two other 
parts of our Digest, the sixth and seventh, which are arranged in 
fourteen books, must be laid on one side, so that they can at a 
later time both study them and display their knowledge of them in 
Court. If they studiously imbue themselves with these and take 
pains both to read and thoroughly to understand the Code of 
Imperial statutes by the end of the fifth year, in which they are 
called protytce, they will want for nothing in legal knowledge, but 
will embrace the whole of it from the beginning to the end in their 
minds, and, though this is the case with no other of the branches 
of learning, the number of which is infinite, however worthless any 
may be, this study by itself will be carried forward to an admirable 
conclusion which it now receives at our hands. 6. Accordingly, when 
all these legal secrets are disclosed, nothing will be hidden from 
the students, and, after reading through all the works put together 
by us by the hands of the eminent Tribonianus and the others, 
they will turn out distinguished pleaders and servants of justice, 
and, both for contending in cases and for deciding them, they will 
be the ablest of men and successful in all times and places. 
7- These three works which we have composed we desire should 
be put in their hands in royal cities as well as in the most fair city 
of Bery tus, which may well be styled the nursing mother of law, as 
indeed previous Empeiprs have commanded, but in no other places 
which did not enjoy the same privilege in old times, as we have 
heard that even in the brilliant city of Alexandria, and in Csesarea 
and others, there have been ignorant men who, instead of doing 
their duty, conveyed spurious lessons to their pupils, and such as 
these we desire to make desist from that attempt by laying down 
the above limits, so that, if they should hereafter be guilty of such 
conduct and carry on their duties outside the royal cities and the 
metropolis Berytus, they may be punished by a fine of ten pounds 
of gold and be expelled from the city in which instead of teaching 
the law they transgress the law. 8. There is another thing which 
we mentioned, both in the address which we delivered on first 
appointing commissioners for the compilation of this book and also 
in another ordinance issued by our Divinity after its completion, 
and which we may suitably issue now, namely that no one of those 
who compose these books is to venture to make any private ciphers 
in them, rtor, by way of saving time, to throw difficulty in the way 
of the interpretation and compilation of the rules, and I wish all 
clerks who may at any time in future commit such an offence to 
know that, besides incurring the criminal fine, they will be com- 

62 



xxiv Cotistitutio Omnem 

pellable to pay twice the value of the book to its owner, if they 
hand it to an innocent person, seeing that the very purchaser of 
such a book can set no value on it, as no judge will allow anything 
to be quoted from it, but will order that it should be treated as 
non-existing. 9. Next there is a very necessary order which we 
make by way of very strong prohibition, that none, either in thi$ 
renowned city or in the fair town of Berytus, among those who are 
prosecuting legal studies, shall perpetrate unworthy, indeed most 
offensive, or I should rather say slavish, jokes, to carry out which 
is an illegal act, either against the professors themselves or their 
companions, and still more against those who attempt the study of 
law when fresh to the work. How indeed can the word 'joke ' be 
used of what loads to criminal acts ? Such conduct we do not by 
any means allow ; and this whole brand) of the matter we put 
under strict rule for our own days and transmit it to all future 
time, as it is right that our HOU!H should be educated first, and then 
our tongues. 10* All the foregoing, so far afi this most prosperous 
city is concerned, the eminent man who is prefect of this genial 
city muwt take care lx>th to obnerve and to enforce, according to 
what is required by the nature of the offence in tho caae both of 
studonte and writer** ; in the city of Berytus this duty falls both 
on the illufitriouB governor of the Punic shore and the inont blessed 
bishop and tho legal profeaaors of that city v 11. Begin now there- 
fore to deliver to the students legal learning under the governance 
of God and to opeu up the way found by UK, so that they may 
become the best ministers of justice and of the State, and that the 
greatest possible honour may attend you for all ages to come ; the 
fact being that in your day there has been devised an exchange of 
law such as we read in Homer, that originator of all virtue, to have 
been mutually made by Glaucus and Diomedes when they ex- 
changed two unlike things, 

Gold for brass, ft hundred kino 

The worth of what wa given for nine. 

All this we order shall be in force for ever, to be observed by all, 
both professors and students of the law and clerks, by these and 
the judges likewise. Given on the seventeenth day before the 
kalends of January at Constantinople, our mauter Justlnianus ever 
Augustus being consul the third time. 



XXV 



ON THE CONFIRMATION OF THE DIGEST. 

CONSTITUTIO TAJNTA. 

In the name of OUT Lord God Jesus Christ. 

The Emperor Ocesar Flavius Justinianus Alamannicus 
Gothicus Francicus Germanicus Anticus Alanicus 
VandalicMS Africanus pious happy renowned con- 
queror and triumpher ever Augustus to the Senate 
and to all peoples. 

So great in our behalf is the foresight of Divine Humanity that 
it ever deigns to support us with eternal acts of liberality. After 
the Parthian wars were hushed in eternal peace, after the nation 
of the Vandals was destroyed 1 , and Carthage, nay rather all Libya, 
was again taken into the Roman Empire, then I contrived also that 
the ancient laws, already bowed down with age, should by my care 
reach new beauty and come within moderate bounds ; a thing 
which before our command none ever expected or deemed to be 
at all possible for human endeavour. It was indeed a wondrous 
achievement when Eoman jurisprudence from the time of the 
building of the city to that of our rule, which period well-nigh 
reaches to one thousand and four hundred years, had been shaken 
with intestine war and infected the Imperial legislation with the 
same mischief, to bring it nevertheless into one harmonious system, 
so that it should present no contradiction, no repetition and no 
approach to repetition, and that nowhere should two enactments 
appear dealing with one question. This was indeed proper for 
Heavenly Providence, but in no way possible to the weakness of 
man. We therefore have after our wont fixed our eyes on the aid 
of Immortality, and, calling on the Supreme Deity, we have desired 
that God should be made the originator and the guardian of the 
whole work, and we have entrusted the entire task to 

1 For ereptowft read jperemptam, M* 



xxvi Constitutio Tanta 

a most distinguished man, Master of the Offices, ex-quaestor of our 
sacred palace and ex-consul, and we have laid on him the whole 
service of the enterprise described, so that with other illustrious 
and most learned colleagues he might fulfil our desire. Besides 
this, our Majesty, ever investigating and scrutinizing the composition 
of these men, whensoever anything was found doubtful or uncertain, 
in reliance on the heavenly Divinity, amended it and reduced it to 
suitable sbapc. Thus all has l>een done by our Lord and God 
Jesus Christ, who vouchsafed the means of success both to us and 
to our servant** herein, 1. Now the Imperial statutes we have 
already placed, arranged in twelve books, in the Code which is 
illuminated with our name* After this, undertaking a very great 
work, we allowed the same exalted man both to collect together 
and to submit to certain modifications the very most important 
works of old times, thoroughly intermixed and broken up as they 
may almost be called. Hut in the mi<lt of our careful researches, 
it was intimated to UH by the said exalted person that there 
wore nearly two thousand books written by the old lawyers, 
and more than throe million lines were left us by them, all of 
which it was requiwte to read and carefully consider and out 
of them to elect whatever might be bent This, by the grace of 
Heaven and the favour of the Supreme Trinity, was accomplished 
in accordance with our itmtructiotm nuch as/wc gave at the outset 
to the exalted man above mentioned, HO tlwtt everything of great 
importance was collected into fifty books, and all ambiguities were 
settled, without any refractory passage being left We gave these 
books the name of Digest or Paiidecte, for the reason that they 
have within them all matters of question and the legal decision 
thereof, having taken to their bosom things collected from all sides, 
BO that they conclude the whole tank in the space of about one 
hundred and fifty thousand lines. We have divided the books into 
seven parts, not incorrectly nor without reason, but in regard of 
tilt nature and use of numbers and in order to make a division of 
parts in keeping therewith. 2, Accordingly, the first part of the 
whole frame, which part is called irp&ra t after the Greek word, 
comes by itself in four books. 3. The second link has seven books, 
which are catted de faditiis (on trials at law), 4. In the third 
group Dre have put all that comes under the title de rebus (on 
things), the satae baring eight books assigned to it 5, The fourth 
place, which amounts to a sort of kernel of the whole oom&fift 
tion, takes eight books. This contains everything that relates to 
hypothek, so that the subject does not differ very much from the 



Constitutio Tanta xxvii 

actio pigneratitia (action to redeem, etc.), and another book is 
inserted in the same volume which has the Edict of the Edile and 
the Redhibitorian action and the stipulation for returning double 
the price received, which is matter of law in case of an evictio 
(recovery of property on the ground of ownership), the fact being 
.that these matters are connected with the subject of purchase and 
sale, and the aforesaid actions were always closely attendant on 
those last topics. It is true that, in the scheme of the old Edict, 
they wandered off into out-of-the-way places widely apart from 
one another, but by our care they are put in the same group, as it 
is only right that discussions on almost identical subjects should be 
put close together. Then another book has been devised by us 
to follow the two first to deal with interest on money and with 
tragectitia pewmia (bottomry loans), also on documents of title, on 
witnesses, on proof, and therewith on presumptions, which three 
separate books are placed close to the portion dealing with things. 
After these we have assigned a place to the rules laid down any- 
where as to betrothals, marriages, and dowries, all which we have 
set forth within three volumes. On guardianship and curatorship 
we have composed two books. This framework, consisting of eight 
books, we have set down in the middle of the whole work, and it 
contains all the most practical and best expressed rules collected 
from all quarters. 6 V We then come to the fifth article of our 
Digest, to which tha reader will find consigned whatsoever was 
said of old time on the subject of testaments and codicils, both of 
ordinary persons and soldiers ; this article is called "On Testaments," 
Next comes the subject of legacies MiArfdeicominissa (testamentary 
trusts), in bookw five in number. 6a. And as there is nothing so closely 
bound up with anything else as an account of the lex Fafoidia 
with legacies, or of the 8enawcon&u>UiMn Trebellicmum withjidei- 
commma, we appropriate two books to these respective subject^ 
and thus complete the whole fifth part in nine books. We have 
not thought proper to put anything besides the Sena^wwultMm 
Trebettiamm, because, as to the stumbliugblocks and obscurities 
of the Senatuseonwlftjm JPeffasiamm, which the very ancients 
themselves were disgusted with, and their nice and superfluous 
distinctions, we desire to be rid of them, and we have included 
all the law we lay down on the subject in the Trebdlimum* 
66. In all this we have said nothing about caduca (escheats); lest a 
head of law which, in the midat of tuxptosperous courses and bad 
times for Rome, grew in importance with public distress, and drew 
strength from civil war, should remain in our day when our reign 



xxviii Constitutio Tanta 

is strengthened by Divine fevour and a flourishing peace and placed 
above all nations in the matter of the perils of war, and thus a 
melancholy reminiscence should be allowed to cast a shadow on a 
joyful age. 7 Next we have before us the sixth part of the 
Digest, in which are placed all kinds of bonorum jwsftessio, whether 
they relate to freeborn persons or freedmen, and herein the whole, 
law concerned with degrees of relationship and with connexion by 
marriage, also statutable heritage and succession ab int&ttato in 
general and the Setictfusconwtltnm Tvrtnllianum or Orjitiannm, 
which respectively regulate the succession of children to their 
mother, and mothers to their children, We have assigned two 
books to all the varieties of bonorum POBBMMO and reduced the 
whole to a clear and compendioxis scheme* 7a After thiw wo take 
the things laid down by old author** as to opens novi nuntiatw 
(notification of novel structure); an to the damnum infcttwni 
(apprehended miHchief), also for the ca#o of the deduction of 
buildingB or the name being threatened, also us to the keeping off 
of rainwater ; further we take whatever we find provided by ntatute 
relating to jnMicani as well us to the making of voluntary gifts 
both mter vivas and morti* amxa, all which wo have put in a 
single book, 7/>. For manumitoiiaiui and trials w to liberty, these 
are the subject of another !xx>k, (7c) and a^ain on questions as to 
property and possesHfam there are manj dificyrwivo pannages put hi 
a single volume, (7d) while a further book IR assigned to the subject 
of persons who have suffered judgment or have confessed in jure 
(In the pleadings), also of detention of goods and sales thereof (for 
insolvency), and as to the preventing of frauds on creditors, 7e. 
After this, Interdicts are dealt with in the lump, then come 
exceptions (pleas), and there IB again a separate book embracing 
the subject of lapse of time and obligations and action* ; the 
result being that the above-mentioned sixth part of the whole 
volume of the Digest is kept within eight books. & The wreath 
and Iwt division of the Digest is made up of six books, and ail 
the tew that is met with as to stipulations or verbal obligations, as 
t0M**lie**nd mandatores (persons who request an advance to be 
made to a&other), also novations, discharges of debt, formal receipts 
and pratomn stipulations is set down in two volumes, which ft 
was impossible so much as to reckon among the number of ancient 
books* So. After ibis we have pat two terrifying books en the 
subject of private and extraordinary offences and also of puWfc 
Crimea, in which aw described the whole severe treatment and 
awful penal meamms applied to criminals, mixed with which tie 



Constitutio Tanta xxix 

the provisions which have been made as to incorrigible men who 
endeavour to conceal themselves and who resist authority, also the 
matter of penalties such as are imposed on condemned persons, or 
remitted, and the subject of their property. 8&. Next we have 
devised a separate book on appeals from judgments delivered by 
f way of deciding either civil or criminal cases, Sc. and whatever 
else we find devised by the ancients and strictly laid down for 
municipal authorities or with relation to decurions or to public 
offices or public works or nundince (right of market), or promises or 
diiferent kinds of trials or assessments or the meaning of words, 
all these are taken into the fiftieth book, which closes the whole 
compilation. 9. The whole of the above has been completed by the 
agency of the eminent man and most learned magistrate Tribonianus, 
ex-qusestor and ex-consul, a man adorned alike with the arts of 
eloquence and of legal science, as well as distinguished in practical 
life, and one who has no greater or dearer object than obedience to 
our commands : other brilliant and hardworking persons have co- 
operated, such as Constantinus, that illustrious man, Count of 
the Sacred Largesses and Master of the Office of Libels and Sacred 
inquiries, who has long deserved our esteem from his good repute 
and distinction ; also Theophilus, an illustrious man, a magistrate 
and learned in the law, who wields admirably the best sway in the 
law over this brilliant^city ; TDorotheus, an illustrious man, of great 
eloquence and qusestorian rank, whom, when he was engaged in 
delivering the law to students in the most brilliant city of Berytus, 
we, moved by his great reputation and renown, summoned to our 
presence and made to share in the work in question ; again, 
Anatolius, an illustrious person, a magistrate, who, like the last, 
was invited to this work when acting as an exponent of law at 
Berytus, a man who came of an ancient stock, as both his father 
Leontius and his grandfather Eudoxius left behind them an excellent 
report in respect of legal learning ; also Cratinus, an illustrious 
person, Count of the Sacred Largesses, who was once a most efficient 
professor of this revered city. All these were chosen for the above- 
mentioned work, together with Stephanus, Mena, Prosdocius, 
Eutolmius, Timotheus, Leonides, Leontius, Plato, Jacobus, Con- 
stantinus, Johannes, most learned men, who are of counsel at the 
supreme seat of the Prefecture, which is at the head of the eastern 
prcetoria, but who derive a testimony to their excellence from all 
quarters and were chosen by us for the completion of so great a 
work. Thus, all the above having met together under the guidance 
of the eminent Tribonianus, so as to accomplish this great work in 



xxx Comtitutio Tanta 

pursuance of our commission, the whole was by Divine favour com- 
pleted in fifty books. 10. Herein we had so much respect for 
ancient authority that we by no means have suffered them to con- 
sign to oblivion the names of those learned in the law ; everyone 
of the old lawyers who wrote on law has been mentioned in our 
Digest ; all that we did was to provide that if, in the rules given, 
by them, there appeared to be anything superfluous or imperfect 
or of small importance, it should be amplified or curtailed to the 
requisite extent and be reduced to the most correct form ; and in 
many cases of repetition or contradiction what appeared to be better 
has been set down instead of any other reading and included under 
one authority thus given to the whole, so that whatever has now 
been written may appear clearly to be ours and to be composed by 
our order, none being at liberty to compare the ancient text with 
what our authority has introduced, an in fact there have been many 
very important transformations made on the ground of practical 
utility* It goes as far as thin* that where an Imperial enactment is 
set down in the old bookn, we have not spared even this, but 
resolved to correct it and put it in better form ; leaving the very 
names of the old authority, but preserving by our emendations 
whatever the real Nense of the statutes made suitable and necessary. 
Hence it came to paw that where of old there wan any matter of 
doubt the question has now l>ccomo 'quite ,.afe and undisturbed, 
and no room for hesitation is left* 11. Wo aw however that the 
burden of all this mass of knowledge is more than such men are 
equal to bearing as are insufficiently educated and are standing in 
the vestibules of law, though on their way towards the secrete 
thereof, and we therefore were of opinion that a further compendious 
summary 1 should be prepared, so that, thereby tinctured and BO 
to speak imbued with the first elements of the whole subject, they 
might proceed to the innermost recesses thereof and take in with 
eyes undazzled the exquisite beauty of the law. We therefore 
rosuaoned Tribonianus, that eminent man who had been chosen 
for the direction of the whole work, also Theophllusand Dorotheas, 
illusbriow persons and most eloquent professors, and commissioned 
them to collect one by one the books composed by old authors in 
which the first principles were to be found, and thereupon, what- 
ever they found in them that was useful and most to the purpose 
and polished in every point of view and in accordance with the 
practice of the present age, all this they were to endeavour to gisap 
and to put it into four books, so aa to lay the first foundations and 
1 mritocrit tmtndatfa. On 



Oonstitutio Tanta xxxi 

principles of education in general, and thus enable young men, 
supported thereon, to be ready for weightier and more perfect 
rules of law. We instructed them at the same time to bear in 
mind our own Constitutions as well, which we have issued with a view 
to the amendment of the law, and, in composing the Institutes, not 
r to omit to insert the same improvement, so that it should be clear 
both where there had been any doubt previously, and what points 
had been afterwards established. The whole work, as accomplished 
by these men, was put before us and read through ; whereupon we 
received it willingly and judged it to be not unworthy of our mind, 
and we ordered that the books should be equivalent to enactments 
of our own, as is more plainly declared in our own address which 
we have placed at the beginning of the whole. 12. The whole frame 
of Roman law being thus set forth and completed in three divisions, 
viz. one of the Institutes, one of the Digest or Pandects, and lastly 
one of the Constitutions, all being concluded in three years, whereas 
when the work was first taken in hand it was not expected to be 
finished in ten years, we offered this work too with dutiful intent 
to Almighty God for the preservation of mankind, and rendered 
full thanks to the Supremo Deity who vouchsafed us successful 
waging of war and the enjoyment of honourable peace and the 
giving of the best laws, not only for our own age, but for all time, 
both present and future. Therefore we saw it to be necessary that 
we should make manifest the same system of law to all men, to the 
end that they should recognise the endless confusion in which the 
law was, and the judicious and lawful exactitude to which it had 
been brought, and that they might in future have laws which were 
both direct and compendious within every one's reach, and of such 
a nature as to make it easy to possess the books which contained 
them* Our object was that people should wot simply be able by 
spending a whole mass of wealth to procure volumes containing a 
superfluous quantity of legal rules, but the means of purchasing at 
a trifling price should be offered both to rich and poor, a great 
deal of learning being procurable with a very small outlay. 
13. Should it chance that here and there, in so great a collection 
of legal rules, taken as it is from an immense number of books, 
some cases of repetition should occur, this no one must be severe 
upon ; it should rather be ascribed first of all to human weak- 
ness, which is part of our nature, as indeed it belongs rather to 
the Deity than to mortal man to hare a memory for all things 
and to come short in nothing, as indeed was said of old. It 
should also be borne in mind that there are some rules of exceeding 



:xxii Constitutio Tanta 

Brevity in which repetition may be admitted to good purpose, and 
t has been practised in accordance with our deliberate intent, the 
act being that either the rule was so material that it had to be 
eferred to under different heads of inquiry, because the two 
lubjectB were connected together, or else, where it was involved in 
>ther different inquiries, it was impossible to exclude it from some, 
usages without throwing the whole into confusion. And in these 
passages, in which there were well-reasoned arguments set forth by 
the old writers, it would be altogether an unlawyerlike proceeding 
to cut out and get rid of something that was inserted in one after 
another, aa it would confuwe tho mind and sound absurd to the 
Kirs of anyone to whom it was presented. 14. In like manner, 
where any provision ha* been made by Imperial enactment, we 
have by no meann allowed it to l>e put in the book of the Digest, 
as the reading of such enactments in all that is wanted ; save where 
this too is done for the game reaHonn as those for which repetition 
is admitted. 15* AH for any contradiction occurring in this book, 
none such has any claim to a place in it, nor will any be found, if 
we consider nicely the grounds of divernity ; some special differential 
feature will be discovered, however obscure, which doew away with 
the imputation of inconniHtency, put* a different complexion on the 
matter and keejw it outeide tho Imutn of discrepancy. 10, Again 
should anything happen to be piumed over w,hich, among RO many 
thousand things, wan, so to apeak, placed in tho depth and lying hid, 
and being fit to be so [placed], [still] was covered with darkness 
and unavoidably was left out, who could with reason find feult 
with this, considering in the first place how limited is tho mind of 
mortal man, and secondly the intrinsic difficulty of the case, where 
the passage, being closely bound up with a number of useless ones, 
gave tho reader no opportunity of detaching it from the rest? It 
may be added too that it IB much better that a few valuable 
passages should escape notice than that people should be 
encumbered with a quantity of useless matter. 17. There is one 
very remarkable foct which comes to light in these books, namely, 
that the old books, plentiful as they were, are found to be of smaller 
oompess than the more compendious supply now open. The fact 
is that the men who carried on actions at law in the old days, in 
spifceof the number of rules of law that had been laid down, still 
only made use of a few of them in the course of the trial, either 
because of a deficient supply of books, which it was out of their 
power to procure, or simply owing to their own ignorance ; and 
cases were decided according to the good pleasure of the judge 



Constitutio Tanta xxxiii 

rather than by the letter of the law. In the present compilation, 
I mean in our Digest, the law is got together from numerous 
volumes, the very names of which the men of old could not tell, or 
rather had never heard ; and the whole has been composed with 
an ample supply of matter in such sort that the ancient plenty 
.appears defective while our own compendious collection is very 
rich. Of this ancient learning Tribonianus, most excellent man, 
has furnished us with a very large supply of books, a number of 
which were unknown even to the most erudite men ; these were 
read through, and all the most valuable passages were extracted 
and found their way into our own excellent work. But the authors 
of this composition did not peruse those books only from which 
they took the rules they have set down ; they read a great deal 
more, in which they found nothing of value or nothing new which 
they could extract and insert in our Digest, and which accordingly 
they very reasonably rejected. 18. Now whatever is divine is 
absolutely perfect, but the character of human law is to be con- 
stantly hurrying on, and no part of it is there which can abide for 
ever, as nature is ever eager to produce new forms, so that we fully 
anticipate that emergencies may hereafter arise which are not 
enclosed in the bonds of legal rules. Wherever any such case 
arises, let the August remedy be sought, as in truth God set the 
Imperial dispensation at tile head of human affairs to this end, 
that it should be in* a position, whenever a novel contingency 
arrives, to meet the same with amendment and arrangement, 
and to put it under apt form and regulations. We are not 
the first to enunciate this, it comes of an ancient stock ; Julianus 
himself, that most acute framer of statutes and of the Perpetual 
Edict, net down in his own writings that wherever anything 
should turn out defective, the want should be supplied by Imperial 
legislation. Indeed not only he but the Divine Hadrianus, in 
the consolidated Edict and the Senatusconsultum which followed 
it, laid down in the clearest terms that where anything was not 
found to be set down in the Edict, later authority might meet the 
defect in accordance with the rules, the aims and the analogy 
thereof. 19. Now therefore, conscript fathers and all men in the 
whole world, render fullest thanks to the Supreme Divinity, who 
has kept so greatly beneficial a work for your times : in truth, that 
of which those of old time were not in the Divine judgment held 
to be worthy has been vouchsafed to your age. Worship therefore 
and keep these laws, and let the ancient ones sleep ; and let none 
of you so much as compare them with the former ones, nor, if 



xxxiv Gon8titutio Tanta 

there be any discrepancy between them, ask any question, seeing 
that, whatsoever is set down here, we desire that it alone should be 
observed. Moreover in every trial or other contest, where rules of 
law have to be enforced, let no one seek to quote or maintain any 
rule of law save as taken from the above-mentioned Institutes or 
our Digest or Ordinances such as composed and promulgated by , 
us, unless he wish to have to meet a charge of forgery as an 
adulterator, together with the judge who allows such things to be 
hoard, and to suffer most severe penalties* 20. Lest however it 
should be unknown to you what those books of old lawyers are 
from which this composition is taken, we have ordered that this 
likewise should be set down at the beginning of our Digest, BO that 
it may bo quite clear who are the authorities and which are tho 
booka written by them, and how many thousands of these there are 
on which this temple of Roman jurwprudence has been constructed. 
SXkk Of legal authorities or commentators wo have chosen those 
who were worthy of HO great a work an this, and whom older most 
devoted Kmperors did not wcorw to admit ; we have given all of 
them one pinnacle of rank, and none IB allowed to claim any pre- 
eminence for himaelfi Indeed, seeing that we have laid down that 
the proHcnt lawn thcmnelveH nhould be equivalent to enactments 
iHHued by UH, how nhould any greater or loss importance be 
attributed to any amongst them, whore' one ryiik and one authority 
is vouchsafed to all? 21. One thing there it* which, as it seemed 
good to us at the very beginning, when with the Divine sanction 
we commissioned the execution of this work, so it seems opportune 
to us to command now also ; this, namely, that no man of those 
who either at this day are learned in the law or hereafter shall be 
such shall venture to append any commentary to these laws, save 
80 far as this, that he may translate them into the Greek tongue 
with the same order and sequence as those in which the Roman 
text is written, or, as the Greeks call it, /card nASa, or, if he likes to 
make any notes for difficulties in the various titles, he may compose 
what am commonly called 7rapdrcr\a. Any further interpretations! 
or ratfaer perversions, of these rules of tew we will not allow them 
to exhibit, for fear lest their long dissertations cause such confusion 
as to bring some discredit on our legislation. This happened in 
the case of the old commentators on the Edictim perpetwm, for, 
although that work was composed in a compendious form, these 
men, by extending In this way and that to divers intents, drar it 
out beyond all bounds so as to bring almost all Roman law into 
confusion ; and, if we do not put up with thm^ how can ire ever 



Constitutio Tanta xxxv 

allow room for the vain disputes of future generations ? If any 
should venture to do such things, they will themselves be liable to 
be prosecuted for forgery, but their books will be altogether set at 
nought. But if, as before said, anything should appear doubtful, 
this must be by the judges referred to the Imperial Majesty, and 
the truth be pronounced on the Augustal authority, to which alone 
it belongs both to make and to interpret laws. 22. We lay down 
also the same penalty on the ground of forgery for those persons 
who at any future time should venture to write down our laws by 
the occult means of ciphers. We desire that everything, the names 
of authors as well as the titles and numbers of the books, should 
be plainly given in so many letters and not by means of marks, so 
that anyone who gets for himself one of these books in which 
there are marks used in any passage whatever of the book or 
volume will have to understand that the codex which he owns 
is useless ; if anyone has these objectionable marks in any part of 
a codex such as described, we decline to allow him to cite any 
passage therefrom in Court ; and a clerk who should venture to 
write such marks will not only be punished criminally, as already 
mentioned, but he will also have to give the owner twice the value 
of the book, if the owner himself either bought such a book or 
ordered it to be written without notice. This provision has already 
been issued by us both in a Latin enactment and in Greek and sent 
to the professors of law. 23. These our laws, which we have set 
down in these books, I mean the Institutes or Elements and the 
Digest or Pandects, we desire should be in force from and after 
our third most happy Consulship, on the third day before the 
Kalends of January in the present twelfth Indictkm, laws which 
are to hold good for all time to come, and which, while in force 
together with our own ordinances, may display their own cogency in 
the Courts in all causes, whether they arise at some future time or 
are still pending in the Court, because they have not been settled 
by any judgment or terms of arrangement Any cases that have 
been disposed of by judicial decree or set at rest by friendly 
compromise we do not by any means wish to have stirred up again* 
We have done well to make a point of bringing out this body of 
law in our third Consulship, as that Consulship is the happiest one 
which the favour of Almighty God and of our Lord Jesus Christ 
has given to our State ; in it the Parthian wars were put an end to 
and consigned to lasting rest, moreover the third division of the 
world came under our sway, as, after Europe and Asia, all Libya 
too was added to our dominions, and now a final completion is 



xxxvi Gmstitutio Tanta 

made of the great work on our law, [so that] all the gifts of Heaven 
have been poured on our third Consulship. 24. Now therefore let 
all our judges in their respective jurisdictions take up this law, and 
both within their own provinces and in this royal city observe and 
apply it, more especially that distinguished man the Prefect of this 
revered city. It will be the duty of the three distinguished 
Pretorian Prefects, the Oriental, the Illyrian, and the Libyan, to v 
make the same known by the exercise of their authority to all 
those who are subject to their jurisdiction. 

Given on the seventeenth day before the Kalends of January in 
the third Consulship of our Lord Justinianus. 



DIGEST OF JUSTINIAN. 

FIRST BOOK. 



M.J. 



I. 

ON- JUSTICE AND LAW. 

1 ULPIANUS (institutes 1) When a man means to give his 
attention to law (jus), he ought first to know whence the term jus 
is derived Now jus is so called from jitstitia; in feet, according 
to the nice definition of Oelsus, jus is the art of what is good 
and fair. 1. Of this art we may deservedly be called the priests ; 
we cherish justice and profess the knowledge of what is good and 
fair, we separate what is fair from what is unfair, we discriminate 
between what is allowed and what is forbidden, we desire to make 
men good, not only by putting them in fear of penalties, but also 
by appealing to them through rewards, proceeding, if I am not 
mistaken, on a real and not a pretended philosophy. 2. Of this 
subject there are two departments, public law and private law. 
Public law is that which regards the constitution of the Roman 
state, private law looks at the interest of individuals; as a matter 
of fact, some things are beneficial from the point of view of the 
state, and some with reference to private persons. Public law is 
concerned with 1 sacred rites, with priests, with public officers. 
Private law has a threefold division, it is deduced partly from the 
rules of natural law, partly from those of the jm gentiwn, partly 
from those of the civil law. 3. Natural law is that which all 
animals have been taught by nature ; this law is not peculiar to 
the human species, it is common to all animals which are produced 
on land or sea, and to fowls of the air as well. From it comes the 
union of man and woman called by us matrimony, and therewith 
the procreation and rearing of children ; we find in fact that 
animals in general, the very wild beasts, are marked by acquaint- 
ance with tfyis law. 4 Jus g&nMwn, is the law used by the various 
tribes of mankind, and there is no difficulty in seeing that it falls 
short of natural law, as the latter is, common to all animated 
beings, whereas the former is only coppion to human beings in 
respect of their mutual relation^; ,,' r ' 

rftd 'wtttfrtfe 

12 



4 On Justice and Law [BOOK I 

2 POMPONIUS (Enchiridion) take, for example, religion as 
observed towards God ; or the duty of submission to parents and 
country ; 

3 FLOEENTIKXTS (Institutes 1) or the right of repelling 
violence and wrong; it in in fact by virtue of this law that 
whatever a man does in defence of his own pernon lie is held to do 
lawfully ; and Nature having made UK in a certain nenne akin to 
one another, it folio WH that it in a moxiHtrouH tiling for one man to 
lie in wait for another. 

4 ULPIANUS (JtiMitutes 1; MamuniHwioiw also are comprised 
in the jm yeMmm. MamimfoHiou in the name aw (lituuiHHuI from 
matim (hand), in whorl the giving of liberty ; an long us a man in 
in a ntato of nlavery he i subject to Maniw and jHtfMtuH (control), 
by tuanumiHHjon ho in freed from control All thin had ita origin in 
tii&jm t/MitlwH* Heeing that by natural law all were born free, and 
manumiHHion WHH not known, because Klnveiy itself wan unknown ; 
but when nlavery came in through the, jV yftttium, there followed 
the relief given by inuuuuuwuon ; and whcrcan people wore once 
Himply culled by the one natural name of 'wan,' by the jm 
yenthtm there cuwo to b<^ three divinionH, firnt freemen, then, an 
contmdiHtinguished from tliem, nlaveH, and thon, in the* thinl place, 
freedwun, that in pcrnonn who had cejued to be nlaven. 

8 HKKMOUKNiANUB (HfHfoMM of law 1) It won by thin 
jus yentinm that war wan introduced, nations wc^re 
kingdowH were CHfaibHrthed, rightH of ownernhip were tiHcert*une<l, 
boundarien were net to domaittn, buildingn were erected, mutual 
tntHic, purchase and Hale, letting and hiring un<l obligations in 
genenii were net on foot, with tho excoptioa of a few of thcne laHt 
which wore introduced by the civil law. 

6 ULPIANUH (hwtitutw 1) The civil law in Howething wliich 
on the one hand in not altogether independent of natural law or 
jw (/entium, and on the other in not in every rt*Hpect wibordinato 
to it ; o that when we make addition to or deduction from xmtverwal 
tew (fiw Gomttttwui), wo ewtabliHh a law of our own, that in, civil law, 
L Now thfe law of ourn in either ancertaiwod by writing or with- 
out writing ; an the Urookn ay, r&v vopw ol /Jh/ Sywafat ol S 
ypa$Qi(of lawB Home are in writing and Homo are not in writing). 

7 PAPINIANUH (JJq/btitiww 2) The civil law in the law which & 
derived from wtatutcH, plebiHciteB, decreoH of tho utmato, onactmeafcH 
of the emperor^ or the authority of thono learned iu the law* 
L Prwtoriau law to that which wan introduced by tho pmton* to 



TET. i] On Justice and Law 5 

order to aid, supplement, or amend the civil law, with a view to the 
public advantage. The same is also called ' honorary law/ after the 
honor (public office) of the prsetors. 

8 MABCIAOTS (Institute* 1) In feet honorary law itself is the 
living voice of the civil law. 

9 GAIUS (Institutes 1) All nations which are governed by 
statutes and customs make use partly of law which is peculiar to 
the respective nations, and partly of such as is common to all 
mankind. Whatever law any nation has established for itself is 
peculiar to the particular state (dmtas), and is called civil law, 
as being the peculiar law of that state, but law which natural 
reason has laid down for mankind in general is maintained 
equally by all men, and is called jus gentium, as being the law 
which all nations use. 

10 ULPiAffus (Rules 1) Justice is a constant, unfailing disposi- 
tion to give every one his legal due. 1. The principles of law are 
these: Live uprightly, injure no man, give every man his due. 
2. To be learned in the law (jurisprudentia) is to be acquainted 
with divine and human things, to know what is just and what is 
unjust, 

11 PAULTJS (on Sdbinus 14) The word jus is used in a aumbetf 
of different senses : ii* the first place, in that in which the name is 
applied to that which is under all circumstances fair and right, as 
in the case of natural law ; secondly, where the word signifies that 
which is available for the benefit of all or most persons in any 
particular state, as in the case of the expression civil law. With 
equal correctness the term jus is applied in our state to honorary 
law, We may add that the prsetor is said to administer the? law 
even when he gives an tuyust judgment, the word referring not to 
what the prsetor did in the particular case, but to what it is his 
business to do* The term jus is applied in another sense to the 
place in which law is administered, the name being transferred 
from the thing done to the place where it is done. What place 
that is may be stated as follows : whatever place the praetor fixes 
upon in which to dispense justice, so as he maintain unimpaired 
the dignity of his own authority and tita easterns of our forefather^ 
that place ia properly termed^. 

12 aiAE03Lortrs (Iuwtifate* 1) We wfceife^ apply the wonj^ 
to the tie of , jperotaal sottnexioo, fat example a man may say C I 
have *yu# cogviAK^i^ ^Mt0^^} am connected by Uocttttr 
marriage) with such 



On the Origin of Law [BOOK i 



II. 

ON THE OKIUIN OF LAW AND OF THE DIFFKIIKXT MAGISTRACIES, 

AH WELL AS THIS KUCXJ&SHION OF T1IOHK LEARNED IN THE LAW. 

1. GAWK (on the IMW of the Tiwlw TnWr* 1; Having 
undertaken to give an exposition of ancient statutes, I have an a 
matter of course thought it right to go back for my account of the 
law of the lloman people 1 to the foundation of the city ; not that I 
have any desire to write unduly verbose commentaries, but because 
I observe that in all subjects a thins is only perfect when it is com- 
plete in all its parts, and undoubtedly the most essential part of 
anything is it* beginning. Besides thi, if with men who are 
arguing wises in the jfonnn it 5s, so to Hpcak, a monstrous thing 
to set the matter forth to the judge, without first, making some 
introductory statement ; how much more unsuitable must it be 
for one who has undertaken to give an exposition to disregard the 
beginning and omit reference to historical causes, and HO to take 
up at once with unwashed hands, if I way V.BC the expression, the 
subject-matter which has to be expounded ? The fact is, HO it 
striken me, that some introduction such an I have mentioned 
makes people more willing to approiich the study of the matter 
in hand, and, when they have got HO far, causes the subject itself 
to be more eawly comprehended, 

PoMi<mw (Kmhirhl fatty Accordingly it ttoenm requisite 
to net forth the origin and development of law itself* L Now 
at the time of the origin of our state the eitteenn at largo 
(jwjyulw) undert<x)k at first to proceed without fixed statutes or 
any fixed law ut till, and everything was regulated by the direct 
control of the kings. 2* After that, the state l>emg more or lews 
enlarged, the tradition is that RomttluH himself divided the txxly 
of the citfoenw into thirty parts, which parte he called 6ww, for 
the reuHou that he exercised hit* care (cura] of the commonwealth 
in accordance with the opinion** of tho parts referred to. Accord- 
ingly he himself proponed to the people certain curiato nt^itutos, 
and the kings that Huccccde<l him did the name thing ; all which 
statutes exist in writing in the book of Bextun Pupiriuw, who wad 



reitd i^Itiun (popM Rttmuniju*), 



TIT. n] On the Origin of Law 7 

contemporary with Superbus the son of Demaratus of Corinth, and 
was one of the leading men. That book, as above mentioned (&ic\ 
is called the Papirian civil law; not that Papirius inserted anything 
in it of his own composition, but because statutes which had been 
passed in an unsystematic way were (therein) reduced by him to a 
.single body of law. 3. The kings being subsequently expelled by 
a tribunician statute, the above statutes all went out of use, and 
the Roman people came once more to live by loosely ascertained 
law or by mere custom rather than by any formal statute, to which 
condition it submitted for about twenty years. 4. Afterwards, in 
order to put an end to this state of things, it was determined that 
ten men should be appointed by the authority of the state through 
whom application should be made for statutes to Greek cities, and 
the Roman state should be put on a statutable foundation. The 
laws so obtained they wrote on ivory tablets, and set them up 
before the rostra, to the end that they might be the more clearly 
perceptible, and supreme authority in the state was given for that 
year to the officers mentioned, their duty being to amend the 
statutes, where necessary, and also to expound their meaning, and 
there was to be no appeal from their decisions as there was from 
those of magistrates in general They, however, themselves took 
note of certain deficiencies in the original statutes just referred to, 
and, accordingly, in te course of the ensuing year they added two 
more tables to those already existing ; hence the statutes taken all 
together were called the statutes of the Twelve Tables. It has 
been stated by some writers that the passing of these laws was 
suggested to the Tenmen by one Hermodorus, an Ephesian, who 
was living as an exile in Italy. 5. These statutes being enacted, 
it thereupon followed that discussion in the forum (di&p&tcutio 
fort) became a necessity, as in fact it naturally must be the case 
that correct interpretation requires the guidance of those learned 
in the law. [The results of] such discussion, and the rules of that 
particular law which is composed by the learned and established 
without the use of writing, are not called by any special name 1 like 
the other parts of the law which have their respective designations ; 
'they are both comprised under the general appellation of civil 
law. <5. After this there were at about tbe same time various 
forms of actions devised, fonnded cm the above statutes, by which 
people in general might carry on litigation ; and in order to prevent 
4he citizens from bringing their actions in any way they pleased, 

;. '* ' ' '' .!** - 

We are obliged to read appellations nil 
Hal 



8 On the Origin of Law [BOOK i 

the Tenmen required that they should be in set and solemn form. 
This branch of the law is called that of atatute-actions (leyis 
actiones), in other words, statutable actions (leyitimw actions). 
Accordingly, these three branches of law arose at about the name 
time, that in to way, the Htatute of the Twelve TableH wan first 
pjissed 1 , thene tables gave rise to the civil law, and in accordance 
with the name were devised tike statute-actions. But, in connexion 
with all these statutes, the knowledge of the way to interpret them 
and the conduct of actions founded upon them was left to the 
College of PontificcH, and it was laid down by order which of these 
should superintend private causes every year ; and the people 
continued to conform to this usage for about a hundred years. 
7. Afterwards, Appiun Olaudius having propounded and reduced 
to form the actions above mentioned, (Jiwms Flavian, his secretary, 
the son of a frcedtnan, purloined the l>ook and put it in the handft 
of the people at large, ut which service the people were wo much 
gratified that he was made a tribune of the pMw as well as a 
senator and a curule anlile. The book itself, which contains the 
forms of action, is called the Flavian civil law, on the same principle 
as that on which a book already mentioned is called the Papirian 
civil law, for (5n. Flavin*, like Papirius, inserted nothing in the 
Ixwk of his own composition. AH the (toman state increased, 
certain kinds of application not being"availnblc, after no long time 
Sextan /Klius composed additional forms and presented to the 
people the book which is known an the Julian civil law* & Here- 
upon, there being in public UNO the statute of the Twelve TableH 
and the civil law, and also the statute-actions, it catne to pans that 
(Uncord atone totwiHW the jtMt* and the fathers, whereupon the 
former seceded and entablmlu'd laws for itself, winch laws are called 
plebiscites. Soon after, on the jtMw being induced to return* a 
great deal of disagreement aronu in connexion with thene plebiKciten, 
in conHoquunce of which it won enacted by the ICJB Hortemfa that 
they Hhould be olwerved w if they wtsre regular Htatuten. The 
result of thin w(tH that the <liif<rence between a plebincite and a 
Htatute coxmwtcd thereafter in the formal method of enactment, but 
the force of the two wiiw the name, 0. Next, neeing that the ;;&far 
found in cour^ of time that it waw difUcult for them to meet 
together, and the general body of the eitteenH no doubt found it 
much more difficult Htill, coiwidoring the vant increane of their 
number^ the very necoHnity of the cane canned the administration 
of the commonwealth to be put in the handn of the nonato; henco 

* boforo Irge, M. 



TIT. n] On the Origin of Law 9 

that body came to take a new part in the management of affairs, 
and whatever it enacted was observed as law, the enactment being 
called a senatics-consultum. 10. At this time, besides the above, 
there were magistrates who administered justice, and in order that 
the citizens might be aware what kind of pronouncement the 
.officer would make in any given case and take their measures 
accordingly, the magistrates published edicts. The edicts of the 
prsetor constituted the honorary law, the name honorary being 
derived from the public office (honos) of the praetor. 11. Lastly, 
in accordance with the growing uniformity in the methods of 
creating law which [the state] was found to have already adopted 
bit by bit, as the occasion required, it came to be a matter of 
necessity that the business of providing for the public welfare 
should be in the hands of one man, as it was impossible for the 
senate to carry on with the same diligence every department of the 
administration ; accordingly a head of the state was established, 
and he was entrusted with power to the effect that whatever he 
laid down should be held valid, 12. Hence in our state [the 
sources of law are as follows: ] a rule may depend on law 
properly so called, that is, on a statute ; or there is the special 
and particular civil law which is established without writing by 
mere interpretation on the part of the learned ; again, there are 
the statute-actions, wjwoh $ve the proper formalities to be used 
in pleading, or there may be a plebfeeitMm, which is enacted 
without the authority of the lathers ; furthermore there are the 
edicts of the magistrates, from which is derived the honorary law, 
or there is a swafoto-consulfom which takes its force simply from 
the feet of being enacted by the senate, though there is no statute 
strictly so called ; or, [lastly,] there is an imperial ordinance, the 
law being that whatever is enacted by the Emperor himself must 
be observed as if it were a regular statute. 

13. Now that we are acquainted with the origin and progress 
oC<>the law, the next thing is to note the titles of the various 
taagistrates and the origins of their respective offices, since, as 
we have already shown, it is through those whtf preside at the 
afdmimatration of justice that practical resulte are secured. What 
advantage is there in the existence of tew m the state, if there 
are no officers to conduct its administration? After that we wiH 
treat of the succession of learned authorities, as there can be no 
consistent body of law at aJtt, unless tkertf.are persons acqixaited 
with the law by whom it caaftotj^^y to day be advanced #od 
improved. 14. With regain* tp< wa^gistrates, there is no 4oubt 



10 On the Origin of Law [BOOK i 

that in the earliest times of the Roman state all power was in 
the hands of the kings. 15. It i clear that there was also in 
those days a tribumw whwwni ; he was the officer who was at the 
head of the horsemen, and he may be said to have occupied the 
firnt place next after the king ; such an officer wan Jximus Brutuft, 
who took the lead in the matter of expulsion of the king. 10. After 
the kingw were expelled, two consuls were established, and it wat* 
provided by statute that thc\ should exercise supreme authority ; 
their name was derived from the fact that they above all others 
4 consulted ' the interest of the commonwealth. Lust however they 
should lay claim in all respects to the power that had been 
wielded by the kin^s, a statute was passed which provided that 
there should be an appeal from their decisions, and that they 
should not be able to inflict capital punishment on a Konmn 
citizen without the order of the people: all that was left them 
was the power of buwnwry coercion (ut wmrr ^ww///,, and of 
ordering persons to be imprisoned in the name, of the state* 
17. After this, us the business of conducting the census required 
a longer time, and the consuls we.ro not equal to tins in addition 
to their other duties, censors were appointed. 18* Then, us the 
nation increased in numbers and frequent wars arose, including 
some of considerable severity waited upiinst Home by bordering 
tribes, it wan sometimes WHO! vet I, whet'i the CJIHC required it, that a 
magintrate should be appointed endowed with exceptional powers; 
accordingly dictators were instituted, from whom there wan no 
uplKBtl, and who even had conferred upon them the right of in- 
flicting capital punishment But it was not held right that such 
a magistrate, wielding an tic did supreme jwwer, should be retained 
in office for more than BIX months. 19, The dictators were required 
to have ittotyixtri w/mtum (masters of the horsemen; just UM the 
kings were to have Iribntni wtwntw (officers of cavalry; ; the 
office wan very much the name an the present office of />m- 
/Mtw prwtwfai still the holders were considered ntututable 
magistrates. 20. About the name time the ph'bx, which had 
acceded from the fxttiw some sixteen yearn after the expulnion 
of the kingn, created tribunes for theumelveH on the Sacred Mount 
by way of plebeian magiHtratoH, They were called tribune** Ixjcaune 
at one time tine whole body of the citizen* wan divided into three 
part*, and one tribune wow created from each part; or because 
they were created by the votoB of the trtbe& 2L Moreover, in 
order that there should be officer** to superintend the temples, 
in which the plcbs unod to deposit all their enactment*, two 



TED. n] On the Origin of Law 11 

members of the plebs were appointed who were called sediles. 
22. Afterwards, when the national finance had come to be on a 
larger scale, in order to provide officers to preside over it, quaestors 
were appointed to superintend money matters, so called because 
they were created for the purpose of inquiring into [the state of the 
.treasury] and guarding the money. 23. And whereas, as has been 
mentioned, the consuls were not permitted by law to hold a court 
for trying a Roman citizen in a capital case without the leave of 
the people, for this reason qusestors were appointed by the people 
to preside in capital causes ; they were called quwtores parritidii; 
these are in fact mentioned in the statute of the Twelve Tables. 
24. It being also resolved that a body of statutes should be passed, 
it was proposed to the people that all the magistrates should go 
out of office in order that Tenmen [should be created for the 
purpose of drawing up statutes. Accordingly the Tenmen 1 ] were 
appointed for one year ; but whereas they contrived to prolong 
their office, and were guilty of oppressive practices, and declined, 
when the time came, to appoint their successors in office, their 
object being that they themselves and their faction should keep 
the government in their own hands without interruption, they 
brought matters to such a pass by their harsh and tyrannical 
domination that the army deserted the state. The author of the 
secession is said to fyive been a certain Yerginius, who found that 
Appius Claudius, contrary to the rule which he had himself taken 
from the old law and inserted in the Twelve Tables, had refused to 
give him the interim custody of his own daughter [pending the 
trial of the question of her status] and had granted it to a man 
who had been set on by the judge himself to claim her as his slave; 
so that, carried away by his desire for the girl, he, the judge, had 
upset all rules of right and wrong. Verginius, finding this, so it 
was said, and indignant at such a departure, in the case of his own 
daughter, from a very long-established rule of law (the fact being 
that Brutus, the earliest consul at Borne, had allowed interim 
liberty in the case of Vindex, the slave of the Vitellii, whose in- 
formation had brought to light a treasonable conspiracy), Verginius, 
I say, who deemed* the honour of his datighter more precious than 
even her life, snatched a knife from the shop of a butcher and killed 
her with it, his object being that the girl's death should preserve 
her from the dishonour of suffering ftral outrage, and thereupon, 
fresh from the deed, before his daughter's blood was dry, he took 

* The portion in brackets TOS proUWy omitted by mistake, a M. 

* Rcadjputon* for putwet* M. 



12 On the Origin of Law [BOOK i 

refuge with the ranks of his fellow-soldiers. The legions* were at 
that time at Algidum, on a military expedition, but the whole army 
at once abandoned their actual leaders and carried the standard** 
to the Aventine mount, soon after which the %>M>s of the city 
betook themselves in a body to the Name spot, and by the common 
consent of the citizens [the Tenmenj were [some of them driven 
into exile and 1 ] some put to death in prison ; whereupon the 
commonwealth returned once more to its previous condition. 
85. Next, several yours having elapsed after the passing of the 
Twelve Tables, a contest arose between the phhx* and the jwrfmt, 
the former desiring that the consuls should be chosen 3 out of their 
own body us well us from the jxtfmr, to which the latter refused to 
consent ; whereupon it was resolved that military tribune** should 
bo created with connular power, being taken partly front the i*Mui 
and partly from the iMtfw*. The number of these oil'iccra varied 
from time to time, sometimes there were twenty, sometimes 
more, occasionally not HO many. 2(1 Afterwards, it having boon 
resolved that the consul)* might be taken from the ;>Mw itself, they 
came to IKS appointed from both bodies ; whereupon, by way of 
allowing the y^r/m* some kind of precedence 4 , it was resolved that 
two officers should IK* appointed from their number j to superintend 
thcgumes f '|, and this WHS the origin of the curule aulilcH. B7. Again, 
UK the consuls \verc called away by wars on jjte bonier, and there 
won thiiH no one left to administer justiecj at home, it came 
to PUHH that in addition to them a pnotor was created who WOH 
called the imfitw M^MMM, IXXSUIHO he whniwKtered justice in 
the city* gfi* Homo yearn after thin, UH thin pnotor wan not equal 
to the discharge of IUH duties, in consequence of the excessive 
crowding of actual foreigner into the city, another ptwtor wu 
created in addition, ralleii the ywr*>r jwnyriHH*, Ix-mitHo MB chief 
duty wan to administer justice to the pt'Mtfriui (foreigner*). 
20. Again, it WUH iwcwuary that there Hhould lw nomo nrngiHtmte 
to pruHicl0"at the court of the fawtn ; accordingly the 'Toinnen for r 
dotenuinhig tiuiHes 1 were appointed, so. About tho wutio time 
wore tdm appointed tlie ' Founww to tiike charge of highway**' 
and t!o ^Threenu^n of tho Mint 1 who incited hron&o, wilvcr, and 
gold ; alno the 'Threemcn for capital CMOH * who wore to have the 

1 Word* In fcrackot* jtrobubly oinittod by mintako. M 

* Hwl am imt ttttyw* <wn<# qmm dw*d<>rim talmlw lat<t> *unt pt&*< M. 

* Itonxl trmri for rrrurc* M, 

4 Ik'iwl /fhttjuri* f<^r ^/r/*. M. ' ft M. 

for //rwAMwrn^ M. * Pol <. Hut. 



TTT. n] On the Origin of Law 13 

care of the prison, so that, when punishment was to be inflicted, it 
might be done by their agency. 81. And as it was unsuitable for 
the magistrates to be engaged in public affairs in the evening, there 
were appointed -the Pivemen for the hither side and the other 
side of the Tiber who might act in the place of the magistrates* 
.32. After this, Sardinia being annexed, then Sicily, also Spain, and 
next the province of Narbo, so many additional praetors were 
appointed, corresponding to the number of provinces which had 
come under the Eoman sway, some of which praetors had to super- 
intend home, and some provincial affairs. Later on, Cornelius 
Sylla instituted State inquisitions (qucestiones publiece), for ex- 
ample, for forgery (de fcdso), for parricide, for stabbers ; and he 
also created four additional praetors. Next Gaius Julius Oaesar 
appointed two praetors and two sediles to preside over the distri- 
bution of com, who 1 were to be called Cereal, from the goddess 
Ceres. Thus there were created twelve praetors and six sediles. 
After this the Divine Augustus appointed sixteen praetors. Then 
the Divine Claudius added two more praetors to hold courts on 
questions of testamentary trusts (de fideicommisso), but one of 
the two was suppressed by the Divine Titus ; and the Divine 
Nerva added a judge who should adjudicate on cases between 
the fiscus and private persons. This makes the number of persons 
who administer justige in fhe state eighteen. 33, All the above 
holds good as long as. the magistrates are at home ; but whenever 
they leave the city, one is left to administer justice who is entitled 
prcqfectus wrbL He used at one time to be appointed when the 
others took their departure 8 , afterwards he may be said to have 
been regularly instituted on account of the Latin festivals, and 
the appointment is made every year. The fact is that the .pre- 
fect of the corn supply and the prefect of the watch (pwqfecbus 
wrwonoe and prcefeetus' vigitom) are not magistrates, they re 
extraordinary officers appointed in the interest of the public- At 
the same time the Cistiberes above referred to (tribunes for the 
hither side of the Tiber) were by a decree of the senate after- 
wards made sediles. 34 On the whole then, as it appears by 
the above, there were ten tribunes of the ptehs, two consuls, 
eighteen praetors and six sediles exercising jurisdiction in the c%* 4 
35. The knowledge of civil law has been professed by a great 
number of distinguished men; we will at present mention such of 
them as held the first rank in the estimation of the Koman people, 
go as to set forth the names and characters of those who 



Read et dicerentor. 5L * K&tiprtfecti* iis forprctfrttes. "Of. M. 



14 On the Origin of Law [BOOK i 

and handed down our rules of law. Of all those who acquired 
systematic knowledge, no one, HO the tradition is, made a public 
profession of it before Tiberius OoruncaniuB ; all those who 
preceded him either desired to keep the civil law in the back- 
ground, or else 1 were in the habit of bestowing their time on uch 
an consulted them, rather than putting themselves at the disposal 
of persons who wished for systematic instruction. 30. One lawyer 
of pre-eminent learning was Publius Papirius, who drew up a 
consolidated version of the Royal statutes (leges reyiw). After 
him came Appiuw CIuudiuH, one of the Teamen, who had the chief 
voice in the composition of the Twelve Tables* After him another 
Appius Claudius of the same family possessed the greatest know- 
ledge of the law; he was called the hundred -handed, he laid down 
the Appian road, ho made the aqueduct for the (Jlaudian water, 
he voted that Pyrrhus nhould not be admitted into the city; and 
he it wan, according to tradition, who first wrote forms of action 
for cases of interruption to possession, but his Iwok in not extant. 
The name Apphw ( laudius devised the letter It, a consequence of 
which seems to have been that Valesii was turned into Valerii and 
Furii into Kurii* 1 , .H7. A man of very great learning after these 
wan Sempronius, \\hoiu the Roman citixeim culled <</><X' (the wise), 
and no one else either before or after him received that surname, 
(Then there \vus| Gains Scipio Nunica, who w;is culled by the senate 
'the ItcHt 1 ; in addition to which ho was presented by the ntate 
with a houwo in the Via Hacm*Ho an to make it more* easy to (XMtHult 
him* Next enme Quintan Muchw; he WWM once sent an envoy to 
Carthage, whore, two dint being laud before him, one for *IKMU?O' 
and the other for 'war/ ho was given the choices tatwocn them awl 
requested to tako back to Howe, whichever he preferred; where- 
u|nm he twk up both, saying that tho proper course WIIH for the 
Carthaginians to ask for whichever of the two they would rather 
receive, ;*tt, The above were succeeded by Tiberius <,Wunuwiu, 
who, UH already mentioned, wsis tho first juiblic profosnor of law ; 
there IH however no written work of hin to \w met with, though hin 
formal opinions w<^re numerous and noteworthy. After 
Mhw and his brother Publiun /KHiw and also Fubliun Atiliun 
played very greit horning an pulriic toichoiv, HO much HO thut the 
two /Klit were In fact ituulo consul*, au<l Atiliun WJIH the firnt pomou 



1 t k crha(trt torn) ottwtdKint fw*nlH,tttgw* f. M. 

fc tl(^l itttru /( <l ft likratn inwttit fMt'tttrt/ue u/t IKM prMtwiiOM ttt otc, 
for ulam A. (?.f/ttt ridtiittr uh hun yrnmthw U llUmm Inwnit ut otc,, which 

in abHiwl (Murvt*) 



TIT. n] On the Origin of Law 15 

to whom the people gave the title of Sapiens. Indeed Sextos 
JElius is mentioned by Ennius, and there exists a book of his 
bearing the title Tripertita, containing a sort of cradle of the law; 
it is called Tripertita because in it we have first the statute of the 
Twelve Tables, this is followed by an exposition, and lastly the 
work concludes with the statute-actions. There are three other 
books which are said to be by the same author, though some 
persons maintain that this is not the case ; these latter have been 
to some extent followed by Cato. We next have Marcus Cato, the 
head of the Porcian family, and some books are extant written by 
him ; but there are a great many by his son, and it is on these 
last that the subsequent works are founded. 39. After these were 
Publius Mucius and Brutus and Manilius, who were the founders 
of the civil law. Of these P. Mucius left as many as ten treatises, 
Brutus seven, Manilius three; and written rolla of Manillas 
are preserved 1 . The two former were of consular rank, Brutus 
had been praetor, P. Mucius had been even Pontifex Maximus. 
40. Pupils of these were Publius Rutilius Rufus, who was consul 
at Rome and proconsul of Asia, Paulus Verginius and Quintus 
Tubero, the well-known Stoic, who studied under Pausa and was 
himself consul Sextus Pompeius, the paternal uncle of Gnteus 
Pompeius, lived at the same time, and so did Ceelius Antipater, an 
author of historical Mjprks, But a man who bestowed more pains on 
the art of public speaking than on legal learning ; there was also 
Lucius Crassus, brother to Publius Mucius, who was called Munianus, 
this last is said by Cicero to have been the best speaker of all 
jurisconsults. 41. After these Quintus Mucius, the Pontifex 
Maximus, son of Publius, was the first who made a digest of the 
civil law, which he arranged under heads in eighteen books. 
42. Mucius had a great number of pupils, but those of 'most 
authority were Aquilius Qallus, Balbus Luciliue, Sextus Papirius, 
and Gaius Juventius ; of these Qallus is reported by Servius to 
have had most authority with the people at large. They are how- 
ever all cited by Servius Sulpicius ; but no original works of these 
men are extant of such a character as to be in general demand ; 
indeed their writings are not in frequent and general use at 
though Serous* constantly made use of them in compiling his 
books, and it is owing to his writings that they themselves are 
in remembrance. 43. Servius Sulpicius, at a time when he occupied 
the chief place as a pleader of causes, or, at any rate, the next 
after Marcus Tullius [Cicero], is $&$& to have gone to Quiutes 
1 Del. mmwneato. M. * After tierviu* inaeft to. 



16 On the Origin of Law [BOOK i 

Mucius for his advice about an affair in which a friend of his was 

concerned, and to have very imperfectly understood an answer 

which Mucius gave him 1 on a point of law. Hereupon, as the story 

is, he asked the question again, and received an answer from Mucius, 

which he still failed to comprehend, which drew upon him a severe 

reproach from Mucius ; it was disgraceful, he said, that a patrician, 

a member of a family of distinction and a pleader of causes, 

should be unacquainted with the law in which his business lay. 

Stung with this taunt, wo to call it, Serviua took pains to leam 

the civil law, and received a great deal of instruction from teachers 

ibove mentioned ; he was taught by Baibus Lucilius, and helped on 

[us way a. great deal by Gullus Aquilius who lived at < ?erciim ; 

'lence it comes that a great many works of his now extant were 

composed at that place. Bervius died in the course of nerving au a 

egate, whereupon the Roman people erected a statue to him before 

Jhe rostra, which in to be seen at this day in front of the roxtm 

>f Augustus. A number of rolls of his works arc in existence ; ho 

eft behind him nearly a hundred and eighty books. 44. Many 

awyera derived instruction from him, among whom the following 

yore the chief writers: Alfenus Varus [Gains*], Auluw OfiliuH, Titiw 

Jiosius, AufidiuH Tucca, Aufidius Namusa, Flavins Priscu^, Oaiuw 

UeiuH, PacuvhiH Labeo [AntistiusJ, the father of Labeo Antistius, 

Jinna, Publiciuw Gollhw. Of these ten, ei^ht wrote books, the 

natter of the whole of whone existing wcnrks was arranged by 

^ufidius Naimisa iu a hundred and forty lx>oks. Among the above- 

aentioned pupils [of Hervius] those of greutowt authority were 

UfemiB Varun and Aulus Oftlhus; Varus attained the eonaulnhip, 

)flIiuB always kept his equestrian rank* lie was on very intimate 

erms with the Kmperor, and ho left a large number of books on 

ivil law which wore intended to serve as a groundwork in every 

art of the nubjcct. He was* the first author to write about the 

tatutes relating to the fire per cent duty; he was also the first 

o make a careful arrangement of the matter of the prtutor'a edict 

D fer as it bore on jurisdictio ; though before him HerviuB left 

wo very short books addrensed to Brutua bearing the title On the 

Hdict. 46. An author of the same day wa Trebatius, he was a 

upil of CoroeUuB Maximus ; there was also Auluw CattcolliuA, a 

upil of Quintus Mucius Volusius 4 , in fact in honour of his instructor, 

1 Bead r&tpondmtem for rwtpvndiitw. v. M. 

2 The names in brackets may porhapn bo omittod, v, M. 
8 Rood ccmscriptit for cwwarikit. 

* 1 road Quinti Muci for tyuintus Muciw, but the text is hoj>el0 



TIT. n] On the Origin of Law 17 

he made Mucius's grandson Publius Mucius his heir. He was a 
man of qusestorian rank, and he did not care to rise higher, though 
Augustus himself offered him the consulship. Among the three last- 
named, Trebatius, it is said, had more practical acquaintance with 
law than Cascellius, but Cascellius surpassed Trebatius in eloquence, 
while Ofllius excelled both in learning* No works of Cascellius re- 
gain, except a single book of " good sayings/' There are a good many 
books of Trebatius, but they are not much used. 46. After these 
came Q. 1 Tubero, who studied under Ofilius ; he was a patrician, 
and he gave up the business of a pleader for the study of the ciTil 
law, his chief reason for this being that he had prosecuted Quintus 
Ligarius before Gaius Caesar without success. Quintus Ligarius 
was the man who, being in command on the African coast, refused 
to allow Tubero to land when he was ill, or to take water, on 
which Tubero prosecuted him, and Ligarius was defended by Cicero ; 
Cicero's oration is preserved, and may iairly be called a very fine 
one; it is entitled Defence of Qwintus Ligwrius. Tubero was 
accounted most learned in public and private law, and he left a 
great many books on both subjects, but he affected antique language 
in his writing, and for that reason his books are not popular. 
47- After him very great authority was allowed to Ateius Capito, 
who followed Ofilius, and Antistius Labeo, who studied under all 
the above (#ic) ; though he was especially instructed by Trebatius. 
Of these two, one, Ateifcs, was consul ; Labeo, when the same office 
was offered him by Augustus, the holding of which would have 
made him interim consul (consid suffectw), declined to accept it, 
but he bestowed great pains on legal studies. In the prosecution 
of these he divided the year into two parts, so as to pass six 
months at Borne with his pupils, and for the remaining six months 
to be absent and give himself up to writing books. In the end he 
left four hundred volumes, many of which are in constant use. 
These two men may be said to have founded two schools respec- 
tively; Ateius Capito adhered to the doctrines which had reached 
him by tradition ; Labeo, who was gifted with original ability and 
relied on his own learning, having given attention to many other 
branches of knowledge, undertook to make a good many innova- 
tions. 48. In connexion with this distinction, Ateius Capito was 
succeeded by Massurius Sabinus, and Labeo by Nerva; these two 
in fact widened the difference between the two schools above 
mentioned. Nerva was on very intimate terms with the Emperor. 
Massurius Sabinus was a member of* the equestrian order, and was 



Of. M 
M. J. 2 



18 On the Origin of Law [BOOK i 

the first to give opinions in the public interest (jpiMice) ; tthe fact 
being that after this privilege had come to be given, it was allowed 
to him by Tiberius Caesar t. 1 49. It may be observed in passing 
that before the days of Augustus the right of delivering opinions 
in the public interest was not granted by the head of the state, 
but any persons who felt confidence in their own learning gave 
answers to such as consulted them ; moreover they did not always 
give their auHweru under seal ; they very often wrote to the judge 
themselves, or called upon those who consulted them to testify to 
the opinions they gave. The Divine Augustus wus the first to lay 
down, in order to ensure greater authority to the law, that the 
jurisconsult might deliver his answer in pursuance of an authoriza- 
tion given by himself ; and from that time such an authorization 
was asked for as a favour. It waw in consequence of this that our 
excellent Emperor Hadrian, on receiving a requcat from nome 
lawyers of praetorian rank for leave to give legal opinions, answered 
the applicants that this privilege was not usually asked for but 
granted [or that there was no leave asked for this practice, it was 
simply carried out], consequently, if any one were confident of his 
powers, he (the Emperor,) would be much pleased to find tht j he 
took steps to qualify himself for delivering opinions to the citizens. 
60. Accordingly leave was given to Hubimu* by Tiberius ( !;UHHI V to 
deliver opinions to the citizens* Sabmus himself WHS admitted into 
the equestrian order at an advanced time of life, in fact at about 
the age of fifty, lie was not a main of ample means, but he was 
maintained to u great extent by his pupils* 5L Sabinus was suc- 
ceeded by OaiuH Ouasius Longinus, the sou of a daughter of Tuboro'n, 
who herself was grand-daughter to Hervius Sulpicius : whence 
CUSSUIH speaks of fiervius riulpicius as his greatgrandfather. 
Oassius was consul along with Quartinus in the time of Tiberius ; 
he possessed very great influence in the state down to the time 
when the Km] >eror expelled him. 52. lie was banished to Sardinia, 
but he lived to be recalled by Vespasian. Nerva was (succeeded 
by Proculus. There lived at the Hainc time another Nerva, the son ; 
there was also another Longinus, who belonged to the equestrian 
order; he afterwards attained to the office of praetor, Proeulun 
however had the greater authority, in fact he had very groat 
influence* The members of the two schools were called respectively 
CaflfciauH and Proculimis, the distinction between the schools having 
taken it start from Uapito and Labea 53, Casaius wan succeeded 

1 I have put W*M pwtofttjumn for putteaf/wK tandtw for lamm* Of* M*: 
reading very doubtful, 

s #1 iziaor. after ?, Of. M, 



TIT. n] On the Origin of Law 19 

by Cselius Sabinus, who had very great influence in the days of 
Vespasian ; Proculus by Pegasus, who was at the same period 
Prefect of the city; Caelius Sabhras by Priscus Javolenus ; 
Pegasus by Celsus; Celsus the father by Celsus the son and 
Priscus Neratius ; both the last mentioned were consuls, Celsus 
indeed was twice consul; Javolenus Priscus was followed by 
Aburnius Valens and Tuscianus, also by Salvius Julianus. 



III. 

Osr STATUTES, DECREES or THE SENATE, AJSTD LOKG USAGE. 

1 PAPISTIAJNUS (Definitions 1) A statute (less) is a command of 
general application, a resolution on the part of learned men, a 
restraint of offences, committed either voluntarily or in ignorance, 
a general covenant on the part of the state. 

2 MABCIABTUS (Institutes 1) The orator Demosthenes him- 
self gives this definition: 'A law (ro^os) is the following : 
something which all men ought to obey for many reasons, and 
chiefly because every law is devised and given by God, but resolved 
on by intelligent men, a means of correcting offences both intentional 
and unintentional, a general agreement on the part of the community 
by which all those living therein ought to order their lives. We 
may add that Chrysippus the philosopher, a man who professed 
the highest wisdom of the Stoics, begins his book called wepl 
vopov (on law) as follows : "Law is the king of all things, both 
divine and human, it ought to be the controller, ruler and com- 
mander of both the good and the bad, and thus to be a standard 
as to things just and unjust and" [director of] "beings political by 
nature, enjoining what ought to be done and forbidding what 
ought not to be done/' 

3 POMPONIUS (on Sabinus 25) Laws ought to be laid down, 
as Theophrastus said, in respect of things which happen for the 
most part; not which happen against reasonable expectation, 

4 GBJUTOS (Digest 5) Rules of law are not founded on possi- 
bilities which may chance to come to pass on some one occasion, 

5 THE SAME (Digest 17) since law ottght to be framed to 
cases which occur frequently and easily, rather than such as 
seldom happen, 

6 PATOTTS (on Hattfww 17) Who* occurs once or twice* 
Theophrastus says, lawgivers pass by. .,' 



20 On Statutes, Decrees, Long Usage [BOOK i 

MOBESTINUS (Bules 1) The use of a statute is as follows : 
to command, to prohibit, to permit, to punish. 

ULPIANUS (on Sabinns 3) Rules of law are not laid down 
with respect to particular individuals, but for general application. 

THE SAME (on the Edict 16) Nobody questions that the 
senate can make law. 

JULIANUS (Diyest 59) Neither statutes nor decrees of the 
senate can possibly bo drawn in such terms as to comprehend 
every case which will ever arise ; it is enough if they embrace such 
as occur very often. 

THE SAME (ibid. 90) Consequently, when a rule is laid 
down in the first instance, a more precise provision ha,s to be 
made, either by interpretation or else by direct legislation on the 
paii of the most excellent Emperor. 

THE SAME (Hid. 15) It is impossible for every point to 

be expressly comprehended in statutes or senatorial decrees ; 
still if, in any cane that arinca, the meaning of the enactment in 
clear, the presiding magistrate ought to extend tine rule to ana- 
logous cases to the one expressed and lay down the law 
accordingly. 

ULPIAJNUB (ou the Edict of ffw Gnrwlft sKtliltoi 1) For, an 
FodiuH says, whenever this or that irt provided by statute, there is 
a fkir opening for any further rule which involve** the same bene- 
ficial principle being supplied, either by interpreting the statute in 
that seme or, at any rate, by the ruling of the presiding magistrate 
(jnmdwtio). 

PAtJLtJB (on tlw Edict 54) But where a rule has obtained 
force which is against legal principle, no analogous extension thereof 
should bo made* 

JtjLrAKUB (Digest 27) In CHHOB where anything haa been 
laid down which is against legal principle, we cannot follow the 
rule of law [so laid down J, 

PATJLUS (Special law] Special law (fas &inffut(m) is law 
which contradicts the ordinary course of legal principle, but has 
been introduced for the Bake of some particular beneficial operation 
in virtue of the authority of those who laid it dowu, 

CENSUS (Digest 26) To know the statutes dees not mean 
to have got hold of the actual words, but to be acquainted with 
their sense and application* 



TIT. m] On Statutes, Decrees, Long Usage 21 

18 THE SAME (ibid. 29) Statutes ought to be interpreted 
indulgently, so as to preserve the intention. 

19 THE SAME (ibid. 33) Where a word in a statute is obscure, 
the meaning which ought rather to be adopted is the one which 
involves no absurdity, especially considering that it is possible by 
applying that principle to arrive at the intention of the statute. 

20 JULIAJSTUS (Digest 55) It is impossible to assign the prin- 
ciple of every rule of law laid down by our forefathers ; 

21 NERATIITS (Parchments 6) consequently the reasons for the 
law laid down ought not to be inquired into ; or else a great many 
rules already established will be upset 

22 ULPIASTUS (on the Edict 35) Where a statute gives an 
exemption in respect of what is past, it maintains the prohibition 
for the future. 

23 PAULTJS (on Plautius 4) Where a particular interpretation 
has always been received, there ought to be no change made* 

24 CELSTJS (Digest 9) It is not like a lawyer to take hold of one 
particular portion of a statute and found a judgment or opinion 
upon it without examining the whole statute. 

25 MODESTINUS (Response g) It is inconsistent with all prin- 
ciples of law and with all ruled of indulgent construction founded on 
justice that where any provision is happily introduced for the 
benefit of mankind, we should interpret it so harshly as to make it 
an authority for severe dealing to the prejudice of those for whose 
sake it was devised. 

26 PATOTTS (Questions 4) There is nothing new in earlier statutes 
being made use of in interpreting later ones. 

27 TEBTTJLUANTJS (Questions 1) It being the case that the older 
statutes are usually made use of for interpreting the newer, it 
ought always to be understood that it is, so to speak, of the essence 
of a statute that it should be applicable to any persons or things 
which may at any time be similar to those specified. 

28 PATOUS (on the lew Julia et Papio, 5) But in like manner the 
later statutes are relevant for interpreting the earlier, unless they 
contradict them, as may be shown in a number of cases. 

29 Tm\SAM^(ontfiel&ccCinda} A man who does what a statute 
forbids transgresses the statute ; a man who contravenes /the 
intention of a statute, without disobeying the actual words, 

a fraud on it 



22 On Statutes, Decrees, Long Usage [BOOK i 

ULPIANXJS (on the Edict 4) A fraud is committed on a 
statute when something is clone which the statute desired should 
not be done, but did not actually forbid ; the difference between 
fraud on the law and transgression of it is the same as that between 
speech and intention. 

THE SAME (on the fc# Jnlia et Papia 13) The Emperor is 
not bound by statutes. The Empress no doubt is bound, at the 
same time the Emperor generally gives her the same exceptional 
rights aw he enjoys himself. 

JuLiANTJfcJ (Digest 84) In any kinds of cases in which 
there are no written laws the rule which ought to be observed 
is that which has come to prevail by ue and custom; and 
should there in any case be no nuch rule assignable, then what 
comes nearest and annwers to one ; if even this cannot be found, 
then we ought to go by the law in use in the city of Home. 
1. Immemorial custom in obnerved an a statute, not unreason- 
ably ; and this is what in called the law eHtublinhed by wage* 
Indeed, inasmuch as statuteH themHelvea arc binding for no other 
reason than because they are accepted by the judgment of the 
people, so anything whatever which the people nhow their approval 
of, oven whore there in no written rule^ ought properly to be equally 
binding on J1 ; what difference dooB it ma&e whether the people 
declare their will by their votes, or by positive acto and conduct ? 
On this principle it is alno admitted law, and very rightly HO, that 
statutes are abrogated not only by the voice of one who moves to 
repeal them (wffragio teywtatoris), but also by the fact of their 
falling out of use by common consent. 

ULPIAOTS (on the office of Proconml 1) It is the practice 
for cmtom of long standing to be observed for law and statute in 
all uch matters as are not regulated by written rules. 

THE SAME (ibid. 4) Where anyone is found to be confident 
as to the custom of a city or province, I am of opinion that a 
question which ought to be asked first of all IB thin : Has the 
custom ever been confirmed by a judicial sentence delivered after 
objections were heard ? 

HmMoarariANUS (Epitomes of law 1) We may add that 
rules of law which have the sanction of long-established custom 
and have been kept up for a great number of years, may be treated 
as being the subject of a tacit agreement on the part of the citizens 
in general, and are OB fully maintained as those which exist in 
writing. 



TIT. m] On Statutes, Decrees, Long Usage 23 

86 PATTLUS (on Sabinus 7) In feet especial weight is allowed 
to a rule which has met with such approval that it was not 
necessary to embody it in writing. 

37 THE SAME (Questions 1) If a question is raised as to the 
interpretation of a statute, we must first inquire what was the rule 
"of law which the state observed previously in cases of the same 
kind ; custom is the best interpreter of statutes. 

38 CALLISTBATTJS (Questions 1) In fact the reigning Emperor 
Severus laid down that where doubts occur owing to the wording 
of a statute, in such a case custom or the authority of constant 
decisions given to the same kind of effect ought to have the force 
of a statute. 

39 OELSUS (Digest 23) When some rule has been introduced 
which was not arrived at by any legal principle, but was founded 
on a mistake and subsequently maintained by mere custom, it is 
not to be applied to similar cases. 

40 MODESTINTJS (Rules 1) Accordingly all rules were either 
made through agreement or established by necessity or fixed by 
custom. ' 

41 ULPIAOTS (Institutes 2) Now all law is concerned with 
1 acquisition or preservation or restriction of right, as what is in 
question is either how a thing becomes a man's property or how a 
man can preserve some thing or right which he already has, or how 
he can transfer it to some one else or cease to have it. 



IV. 
ON IMPBBIAL EKAOTMBKTS. 

(Institutes 1) What the Emperor has deter- 
mined has the force of a statute ; seeing that, by a lew regia which 
was passed on the subject of his sovereignty, the people transfer 
to him and confer upon him the whole of their own sovereignty 
and power* 1. Accordingly whatever the Emperor has laid doTO 
by a letter with his signature, or haa deereed on judicial investigar 
tion, or has pronounced out of couri^ or enacted by an editf^ 
amounts beyond question to a statute. The above are cases of 
yrhat are comnjonly called ccmstatutfons* 2. No doubt soipe <rf 

* Read contbtit to constitit. 



24 On Imperial Enactments [BOOK I 

these are of special application, and are not drawn into a pre- 
cedent ; wherever the Emperor shows indulgence to anyone on the 
ground of his merits, or imposes a penalty on anyone, or gives 
him relief in a way not practised theretofore, this applies only to 
the particular person. 

ULPIAKUS (Fideicomnissa 4) Where any new ordinance 
is made, there ought to be a very clear case of beneficial 
operation to allow of a departure from the law which has been 
held just for a long time past. 

JAVOLENUS (Epistles 13) An indulgence vouchsafed by the 
Emperor, which proceeds in fact from his divine clemency, ought 
to receive the most extensive construction possible. 

McxD&sTiisriTS (Emnm 2) Later enactments have more force 
in law than those which precede them, 



V. 
OK 



S (Institutes 1) All law in force amongnt us dealn with 
either persons, or thiu^n, or actions* * 

HKKMOGENIANUN (Epitomes of Imu 1). * Seeing then that all 
law has been established for the sake of mankind, wo will dieuBB 
first personal status, and then the remaining subjects, following 
the arrangement of the Edivtmi perpetnwi, and joining to the 
above the titlew next in order and connected therewith, HO far aa 
the nature of the subject allows* 

GAIUS (Institute* 1) Now the main divimon of the kw of 
person** in thin, that all human beingw are either free or slaves. 

Fu>KENTi3sriTH (Institutes 9) Liberty is the natural power 
of doing what anyone is disposed to do, save so far as a person is 
prevented by force or by law, L Slavery is a creation of the ju$ 
gentiwn, by which a man is subjected, contrary to nature, to ownership 
on the part of another* 2, Slaves are called servi because military 
commanders commonly ell their captives and so preserve them 
instead of killing them ; 3* they are called mantipia, because they 
are taken by the hands of their enemies* 

MABOIANUS (Institutes 1) Now all slaves have one and 
the same legal condition ; of free men some are ingenui, some ate 
Ubertini L Slaves become subject of ownership either by the 



TIT. v] On Status 25 

civil law or by the ym gentium ; by the civil law, a man over 
twenty years of age becomes a slave by allowing himself to be sold in 
order to have a share in the purchase-money ; by the jus gentiim, 
people own as slaves those who are captured from their enemies or 
who are born from their female slaves. 2, Persons are ingenui 
who are born of a free mother ; it is enough that the mother should 
be free at the moment when the child is born, though she should 
have been a slave at the time of conception. Even in the converse 
case, where she is free at conception, but a slave at the time of the 
birth, the law is that the child is born free ; and it matters not 
whether the mother conceived in lawful wedlock or in random 
intercourse; the mother's ill fortune ought not to prejudice the 
unborn child. 3. Hence arose this question : if a slavewoman is 
manumitted, being with child at the time, and after that is reduced 
to slavery again, or sent into banishment, and then gives birth to a 
child, is the child free or a slave ? However, the view which has 
found deserved &vour is that the child is born free, and that it is 
sufficient for the unborn child that the mother was free at some time 
or other during the period of pregnancy. 

6 GAIUS (Institutes 1) Libertmi are those who have been 
manumitted out of lawful slavery. 

7 PAULTTS (On the portions allowed to children of condemned 
persons). An unborn child is taken care of just as much as if it 
were in existence, in any case in which the child's own advantage 
comes in question ; though no one else can derive any benefit 
through the child before its birth. 

8 PAPINIANTO (Questions 3) The Emperor Titus Antoninus 
laid down that the position of children is not prejudiced by the 
terms of a badly drawn instrument. 

9 THE SAME (ibid. 31) There are many points in our law in 
respect of which women are in a worse legal position than men. 

10 ULPIAITOB (on Sobiwus 1) The question has been asked ; 
according to which sex are hermaphrodites to be treated ? but I 
should say on the whole that they ought to be treated as having 
the sex which predominates in them, 

11 PATOUS (Responsa 18) Paulus gave the opinion that where 
a boy was conceived in the lifetime of the fother [of his mother], but 
without such fother being aware of the connexion formed by his 
daughter, then, even though the boy shou$ be born after the death 
of such grandfather, he te not to be held to be the lawful son of the 
man who begot him* 



26 On Status [BOOK i 

THE SAME ({bid, 19) It is now generally admitted on the 
authority of the very learned physician Hippocrates that a com- 
pletely formed child may be born in seven monthy (scptimo 
mense) ; it may be therefore held that a boy who is born iu lawful 
marriage in seven months is a lawful son. 

HERMOGEXiANtrs (Epitomes of law 1) Where a slave is 
given up by his owner to the fortune of a trial at law in a capital 
case, though he should be acquitted, he does not become free. 

PAULTJB (Sentences 4) We cannot apply the word ' chil- 
dren' [liberl] to offspring which is born fanhioned in Home way 
which is contrary to the normal form of the human wpecicH ; for 
instance, where a woman IB delivered of something monstrous or 
portentous. But any offspring which exceeds the natural number 
rf limbs uHcd by man may in a sense be said to be fully formed, 
md will therefore be reckoned among children* 

TitYPHONixus (Cotitwcemw lo) A testator ordered that 
\rescua should be free if she bore three children. On her first 
lelivery she had one child, on her second throe children. The 
lUOHtion was asked whether any of the children were bora free, 
incl, if any, which. [Answer! The condition on which freedom is 
.0 turn in this ease JH one which the wpiaan has to fulfil ; but there 
san be no doubt that the child last born it \rn\\ free. Nature does 
not allow that two children should issue from their mother'** womb 
it tho Bame time by one movement, and thxw that the order of 
rirth should be uncertain, and it should not be clearly apparent 
vhich of two children in born a fllave and which free* Accordingly, 
.he condition beiu# fulfilled at the moment when the [last] delivery 
>eginn, the reault fa that the child thereupon born is the child of 
1 free woman ; juwt a* if any other condition on which the freedom 
f the woniuu waH to turn had been fulfilled at the moment when 
he wa delivered; or suppone, for inatanee, who had been manu- 
nitted on condition that ahe gave ton thousand to the heir of the 
stater, or to TitiiiR, uud at the moment of her delivery she ful- 
Hied the condition by an agent ; in that case it would have to be 
teld that she wan already a free woman when fche gave birth to 
he child. 

ULHAKUS (Controversies 6) The same would follow if 
IreBCuna in the cane mentioned first bore two, and then brought 
orfh twins : the rule to lay down ia that it cannot be said that 
>oth the twinw are born free, bxit only that the one born last is 
ree. The truth is it m rather a question of fact than of law. 



TIT. v] On Status 27 

17 THE SAME (on the Edict 22) By an enactment of the 
Emperor Antoninus all those living in the Roman world were 
made Roman citizens, 

18 TBDB SAME (on Sahinw 27) The Emperor Hadrian laid down 
in a rescript to Publicius Marcellus that if a free woman were con- 
"demned to the extreme penalty, being with child at the time, her 
child would be born free, and that the custom was to keep the 
woman until she was delivered of the child. We may add 1 that if 
a woman, after conceiving in lawful wedlock, is forbidden fire and 
water, her child is born a Roman citizen and is under the potestae 
of its father. 

19 CELSUS (Digest 29) When lawful marriage has taken place, 
the children follow the father; the child of random intercourse 
follows the mother. 

20 ULPIAJSTUS (on Sabinm 38) A man who has become a 
lunatic is held to retain the same status and rank that he had 
before, as well as any magistracy or authority, just as he retains 
ownership in his property. 

21 MODESTLNUS (Rules 7) If a free man sells himself for a 
slave, and is afterwards manumitted, he does not recover his 
original status which he renounced, but takes the condition of a 
libertimcs. 

22 THE SAME (Eespoma 12) Herennius Modestinus laid down 
that if a slavewoman is delivered of a child at a time when, by 
the terms of the donation by which she was acquired, she ought 
to have been manumitted already, then, seeing that the Imperial 
enactment makes her free at once, her chfld is freebom. 

23 THE SAME (Pandects 1) The expression 'conceived at ran- 
dom' (vulgo conceptw] is applied to anyone who cannot point out 
who is his father, or who can, but his father is one who cannot be 
his father lawfully. Such a one is called 'spurius' from <nropd 
(generation). 

24 UI^PIAKUS (on Sabims 27) This is a rule of nature : who- 
ever is born out of lawful wedlock follows his mother, unless some 
special statute provides otherwise. 

25 THE SAME (on the lew Julia et Papia 1) We must take tbe 
term * ingenuus ' to include one who is judicially pronounced fr$e- 
born, though he should really be a freedman ; what is judi<ft% 
decided is deemed to be thp feci 

* Head** after *#fc Hal 



28 On Statu* [BOOK i 

3 JULIANS (Digest 69) Unborn children are in almost every 
branch of the civil law regarded as already existing. They are 
allowed to take statutuble inheritances ; and if a woman with child 
is taken prisoner by the enemy, and a child is born, it conies under 
the law of poxtlimhuum> moreover it follows the condition of its 
father or its mother [as the case may be] ; lastly, if a slavewoman 
who is with child is stolen, then, although she should be delivered 
when in the hands of a bum Juh purchaser, the child will be 
regarded as stolen goods, and consequently ownership in it \vill 
not IHJ acquired by ww*. Again, on the Minus principle, after the 
death of a patron, so long as a son of the deceased can possibly lie 
born, a fruedmuu is in the same legal position as one whose patron 
is living. 



fy. When a man confesses that he is a 
frcedman, bin patron cannot gh*e him freeborn status even by 
adopting him* 



VI. 

t 
ON I*KUSONK w/jwm AM* (tHrui 



I <AH'H f/Mntitutw I) We next have another division of the 
law of persons ; Home persons uru mi ,;Vw, and some are subject 
to th<; legal authority of others, tat us consider the CUHC of 
persons who arc Hubjeet to the authority of others ; when we HOC 
who such persons arc, we shall thereby understand who arc *ui 
jw/vx, I>t tin then take the cane of those who are under the 
jwttattatf of others. l t Now slaves are under the potowttw of their 
owners, nnd this jwtnf<t& in part of ilwjm //twf/M/u, Jn fact we may 
olmerve among all nation* iilikc that Hluvo-owucrH have the power 
of life und dctailh over their slaves, and whatever IH accjuirod 
thnnigh the nlavc in acquired to the owner. 2. At the present 
clay however no persons living under Roman rule arc at liberty to 
deal cruelly with their slaves to an excessive extent or without 

* Home ground recognised in the statutes, tus, by an enactment of the 
Divine AutoninuH, a man who killn hin own slave without due cause 
in to 1x3 jtitit iw much punished (in one who kills the slave of 
another. Indeed even CXCCHHIVO hurtthncBH on the part of slave- 
owners 5s rcHtraSucd by an enactment of the Htuuo 



TIT. vi] Persons sui juris and alien! juris 29 

ULPIAJSTJS (on the office of Proconsul 8) If an owner 
treat his slaves with cruelty or compel them to commit lewdness 
or submit to indecent outrage, the proper course for the Prseses to 
take may be plainly seen from the rescript of the Divine Pius to 
JSlius Marcianus, the Proconsul of Bsetica. The words of the 
rescript are as follows: "The power which owners have over 
their slaves ought not to be interfered with, and no human being 
ought to be debarred from exercising his legal rights ; still it is 
in the interest of owners themselves that slaves who make just 
complaint should not be refused aid against violence or starvation 
or any insufferable wrong. You must therefore listen to the 
complaint of those slaves of the household of Julius Sabinus who 
fled for refuge to the statue, and if you find that they have been 
treated with improper severity or subjected to infamous wrong, 
order them to be sold on terms which shall secure that they shall 
not be brought back into the hands of their present owner ; and 
should such owner endeavour to evade my enactment, let him 
understand that I will visit his behaviour very severely.'* Moreover 
the Divine Hadrian relegated one TTmbricia, a lady of good social 
position (matrona) 9 for five years, for treating her female slaves 
with extreme cruelty on very trivial grounds, 

3 GAIUS (Institutes 1) Again, a man has under his pote&as 
any children that he has begotten in lawful wedlock : this rule of 
law is peculiar to Roman citizens. 

4 ULPIAISTUS (Institutes 1) A Roman citizen may be a 
paterfamilias or a filmsfamUias or a materfamiKas or a filiar 
fcmilias* A paterfamilias is a man who is in his own potestas, 
whether of mature age or not ; a similar definition applies to a 
materfamiUas ; a jftliusfamilias or JUiafamiUas is under the 
potestas of some one else. A child who is born from the union of 
me and my wife is under my potestas ; and one who is born from 
the union of my son and his wife, in other words, my grandson or 
granddaughter, is equally under my potestas, so is my great- 
grandson or great-granddaughter, and so on of more remote 
descendants. 

5 THE SAME (on Sabinm 36) Grandsons through a son on the 
death of the grandfather regularly come under the potestas of the 
son, that is, of their own fether : similarly great-grandchildren and 
remoter descendants either come under the potestas 1 of the son, if 
he is living and has remained in the family, or else under that of 

1 Bead potMtotem for potentate. Hal. 



30 On Persons sui juris [BOOK i 

some ascendant who preceded them in the group subject to potestas. 
This rule applies not only where the children are such by nature 
but where they are adopted. 

THE SAME (Hid. 9) The definition of 'son' (filiw) is 

' the male child of a man and his wife.' If however we suppose a 
case where a husband was absent* let us say, for ten years, and, on 
coming home, found in his house a child one year old, we agree 
with the opinion of Juliauus that the child is not [to be deemed in 
lawj the son of the husband. Still, according to the same writer, a 
man is not to be listened to who, after constantly living with his 
wife, refuses to acknowledge her son, as not being his own. I should 
say however, and thin is the opinion of Scsevola, that if it is shown 
that the husband passed an interval of time without knowledge of 
his wife, owing to bodily infirmity or any other reason, or a pafcr- 
jft&nUia* was for physical reasons unable to beget children, then a 
child born in the house, though the fact of birth was known to the 
neighbours, is not [to be deemed in law] the son of the husband. 

THE SAME (foul. i2f>) There is no doubt that a grandson 
Rteps into the place of a HOII where his [i.e. such grandson's] 
father is visited with some punishment which causes him to lose 
his citizenship or become a penal slave, 

THE SAME (ibid. 2(5) If the father is a lunatic, IIIB children 
remain none the loss under their father'rf* pott'tftw ; the same 
rule applies to any iHttwfawiliwi who has children Tinder hiw 
polenta** The right of potftitw was established by custom, and a 
man cannot ceaac to have persons under \\vApo1wta8 except by the 
occurrence of the regular circumstances by which children become 
free, consequently there can be no admissible doubt tfiat in tho 
al)ove case the children remain subject to potwta*. Accordingly, 
ho will have in bin jwfr'jtfrw not only those children whom he begot 
before his lunacy began, but also nuch, if there be any, as were 
conceived when he was sane, but were born after he became a 
lunatic. Indeed if his wife should conceive at a time when he is a 
lunatic, it fa a fair question whether his child will not come under 
IUH potextas by birth ; a lunatic, it is true, cannot contract a 
marriage, but he can remain a party to a marriage already 
contracted ; and thin being the ca&o, [it follows that] his ROII will 
be under his poM<un* Similarly, if the wife in a lunatic, a child 
which he may have conceived previously will be born in [the 
huHbatMVn] potwtw ; and if it bo conceived whou she is a lunatic, 
but the husband w wane, there i no doubt that it will be born 



vi] and alieni juris 31 



under potestas, since the marriage remains good. We may add 
that if both husband and wife are lunatics, and, that being the 
case, the wife conceives, the child will be born under the potestas 
of its father, some remnant of intention being assumed to remain 
in the parties in spite of their lunacy ; since the marriage holds 
good where one party is a lunatic, it will do so equally where both 
are in that condition. 1. So true is it that a father who is a 
lunatic retains the right of potestas, that in fact the benefit of 
anything which the son gains is acquired by the father. 
9 POMPONIUS (on Qumtm Mueius 16) A Jilimfamilias is in 
matters of public law on the same footing as a paterfamilias ; so 
that he is able, for example, to discharge the office of magistrate, 
or to be appointed a guardian. 

10 ULPIAOTS (on the lea JuKa et Pa/pia 4) If the Court 
should declare that a child is to be reared or maintained, it must 
be held that inquiry is open on the question of fact whether the 
child is or is not a lawful son ; a decision as to maintenance is not 
allowed to prejudge the above question of fact. 

11 MODESTINTJS (Pcmdects 1) Natural or emancipated children 
cannot be brought under patria potestas against their will. 



VII. 

ADOPTIONS ABTD ElWIANCIPATIONS AND OTHER 
METHODS BY WHICH pOtCStaS IS DISSOLVED. 



1 MODESTINTTS (Rules 2) The position of fiUutfcmiUas is 
acquired not only by nature but by adoption- L The word 
adoption is a general term, and embraces two kinds of cases, of 
which one is again called adoption, the other arrogation. Adoption 
is of zfUusfamflAas, arrogation of one who is swijwris. 

2 GAITTS (Institutes 1) Now adoption, in the comprehensive 
sense of the word, is performed in two ways, that is, either by 
the authority of the Emperor or by the order of a magistrate. By 
the authority of the Emperor a man adopts such as are mi Juris ; 
which kind of adoption is. called arrogatton, because the person 
adopted is asked, that is, wterrogated, .whether he desires that 
the person whom he is intending ft* adopt should become fair 
lawftd son, and the person who is be&g adopted is asked whether 
he is willing that this should take place; A man adopts ^bj 



32 Adoptions and Emancipations [BOOK i 

order of a magistrate persons who are under the potestas of a 
paterfamilias, whether they are issxie in the first generation, as 
sons or daughters, or in a lower generation, as grandsons or grand- 
daughter^ great-grandsons or great-granddaughters. 1. One rule 
applies equally to both kinds of adoption, viz. that men who are 
incapable of begetting children, such as those who are impotent, 
are able to adopt. 2. But the following rule applies only to the 
kind of adoption which requires application to the Emperor, viz. 
that if a man who has children under his potestas allows liimself to 
be arrogated, not only is he brought under the potestas of the 
arrogator himself, but his children too come under the potestas of 
the same person, so as to be, as it were, that person's grand- 
children, 

3 PAITLUH (on JSabiiitM *i) Where a consul or the governor of 
a province w a Jilvtuiffwillfas, it is recognised law that he can be 
emancipated or given in adoption in his own court 

4 MOIHSHTINUS (Rut?* 2) It is held by NeratiuH that any 
magistrate who can take l<>{/w aetf,mw# can emancipate hin children 
or give them in adoption in his own court, 

5 OKLHUH (D!</&& 2) In case of adoption it is only persons 
who tire Mfi jwm whose consent is asked ; but where children arc 
given in adoption by their father, the will of both parties has to bo 
eonwidered, [which may be made knowfc] by exprewn consent or by 
the fact of no objection Ixuiiff made. 

6 PAIJUW (on tM Wdiet '*#) When anyone in adopted for 
grandson as through a particular son, the son's own consent is 
required ; this IB said by Julianus himself. 

7 CKLSTJB (Diyest 30) There is no need, in case of an adoption, 
for concurrence on the part of those with whom the ponton to be 
adopted will come into agnatic connexion, 

8 MoiOTiN(TH (Rnfw 2) The rule once in force that in a case 
of arrogation the concurrence of a wvrator should not be inter- 
posed luw been very properly altered by the Divine Claudiuw. 

9 ULHANTO (on ftabinm 1) Even a blind man caw adopt or 
be adopted, 

PAITLUH (on tialinm 2) If a man who has a son in his 
potesta* should, with the consent of that son, adopt anyone into 
the position of grandson through that son, this will not make the 
party adopted Mm hw<% to his [adoptive] grandfather, seeing that 
if the grandfather dies, he falls into tlwpotextas of the person who 
is, BO to speak, MB father. 



TET. vn] Adoptions and Emancipations 33 

11 THE SAME (ibid. 4) If a man who has a son should adopt 
some one into the position of grandson, as though he were 
the son of that son, but the son himself has not concurred in the 
adoption ; then, on the death of the [adoptive] grandfather, such 
grandson will not be under the potestas of the son. 

IS . ULPIAIOTS (on Sdbinus 14) When a man has been set free 
from patria potestas, he cannot afterwards come again under 
potestas in any creditable way, save by adoption. 

13 PAPINIAKUS (tyM&thom 36) In almost every legal aspect of 
the case, when the potestas of an adoptive father is terminated, 
there is no trace left of the preceding state of things ; in short 
the very dignity of father acquired by adoption is laid aside when 
the relation is ended. 

14 POMPONIUS (on Sabwus S) Even a grandson through a[n 
adopted] son, though conceived and born in the household of the 
lather of such adopted son 1 loses his whole legal position on 
emancipatioa 

15 , ULPJABTCTS (on Sabinw 26) When a paterfamilias is 
adopted, everything which belongs to him and all his rights of 
acquisition pass tacitly to the person who adopts him ; in addition 
to this, any children who are ya his potestas go with him, moreover 



or were conceived but unborn at the moment of arrogation, will 
equally come under the potestas of the party arrogating. 1. If a 
man has two sons and a grandson through one of the two, and 'he 
wishes to adopt his grandson so as to put him on the footing of son 
of the other son, he can do so by first emancipating him and then 
readopting him as son to such other son. In fact he does this last 
just as if he were any stranger, and not as grandfather, and, on 
whatever principle he could adopt a person whom he treated as 
the sou of a stranger, on the same principle he can adopt one 
whom he treats as the son of his own other son. 2 In a case of 
abrogation one point to inquire into is whether the party arrogating 
chances to be under sixty years of age, because, if he is, he ought 
rather to think of begetting children ; unless it so happen that 
there is some disease or infirmity in the casev or there is some other 
good ground for an abrogation, as, for example, where he wishes to 
adopt a person with whom he is connected 3. Moreover a man 
ought not to arrogate more than one person without lawful causey 

1 Read adopted for wtoyMim. Of. M. _ 

M. jr. 3 



34 Adoptions and Emancipations [BOOK 

nor some one else's freedman, nor a person who is older than 
himself ; 

16 JAVOLENUS (extracts from Cassins C) as the adoptive re- 
lation is only allowed between those persons between whom the 
natural isolation might by possibility have existed. 

17 ULJPIANUS (on Sabimts 26) A man is not allowed to arrogate 
a person to whom he has been an acting guardian or curator, so 
long as the perHon whom it is proposed to arrogate is under 
twenty-five, ^because otherwise his object in arrogating him might 
be to avoid submitting his accounts. Moreover there ought to be 
an inquiry an to whether or not the case is one in which the 
arrogation is desired on Home dishonourable ground. 1. I 0nly 
those children under the age of puberty are allowed to be 
arrogated in whoso case the reason for the arrogution is either 
blood-relationship or woine perfectly genuine affection, in all other 
cases leave must be refused, lost it should be in the power of the 
guardians to put an end to the guardianship, and at the name time 
to bring to nothing a testamentary substitution which may have 
been made by the father of the ward. 2. Accordingly an estimate 
imist be made first of the ward's means and also of the means of 
the person who proposes to adopt him, in order to ascertain by 
comparison of the two whether the adoption can be considered 
beneficial to the ward ; next an inquiry iimst be made into the 
manner of life of the man who wishes to make the ward a member 
of IUH family ; thirdly, an to his age, BO w> to ascertain whether it 
would not be better for him to think about begetting children for 
himself, rather than bringing some one under his potmhts who is 
taken from another man's family. 8. It should further be con- 
sidered whether, when a man has one or more children of his own, 
lie ought to be allowed to acquire another by adoption ; as the 
result might be that either those children whom he begot in 
lawful wedlock would have a worse prospect of the kind which all 
children acquire who are dutiful to their parents, or the ward 
himself HO adopted would gain less by the adoption than he ought 
under the circumstances to get. 4. Hometimes a poorer person 
will even be allowed to adopt a richer, if he is clearly a man of 
frugal habite, awl his motives are honourable and well-known to 
be such, fl. However it is the practice in such cawes for security 
to be given, 

1 The puttsage BOCUIH corrupt : the aonso must bo as above. Read his for 
cGteri* for wtprurum, ami delete /*/* where it oecura, 



TIT. vn] Adoptions and Emancipations 35 

18 MABCBLLUS (Digest 26) In fact, when a man wishes to 
arrogate a ward, if he establishes a good case for it in other 
respects, his application should only be granted on the terms of 
his giving an undertaking to a government slave that he will make 
over any property of the ward's that comes to his hands to those 

persons to whom such property would have gone if the ward so 
arrogated had remained as he was. 

19 ULPIABTXTS (on Sabinus 26) It is beyond doubt that, in the 
form of the undertaking which the arrogator has to give, where 
there occur the word? "those who have a right thereto," this 
reference includes the case of any manumissions which are con- 
tained in the secondary testament, and most especially that of a 
slave being made substitutional heir, also the case of legatees. 
1. If the arrogator should fait to give the security in question, an 
utilis actio is allowed against him. 

20 MAJBCELLUS (Digest 26) This undertaking comes into force 
where the ward dies under age. It may be observed that the law 
speaks of a male ward, but the same practice has to be observed in 
the case of a girl ; 

21 GAIUS (Rules) as females may be arrogated by imperial 
rescript as well as males. 

22 ULPIANTJS (on SaUnus 26) If an arrogator dies leaving an 
adopted son who is under age, and soon after that this latter 
himself dies, will the heirs of the arrogator be liable to the action? 
The proper answer is that the heirs will be equally bound to hand 
over the property of the adopted son, and the quarter in addition. 
1. Here the question has been asked whether the arrogator can 
appoint a substitutional heir to the adopted son under age,; but I 
am of opinion that such a substitution is not allowed, unless it be 
simply in respect of the quarter which he gets of the arrogator's 
property, and the substitution must turn on an earlier event 
than that of the adopted son reaching the age ,of puberty. But 
if he should leave the property in question to the adopted son 
upon trust to hand it over at some dale chosen at large, such 
a trust ought not to be acjmitted, because the quarter does 
not come to the son by an exercise of the testator's will, but 
by the Emperor V provision. 2. All the above applies equally 
whether a man abrogates a boy under age as a son or JB :a 
grandson. 

3 a 



36 Adoptions and Emancipations [BOOK i 

23 PAULTJS (on the Edict 35) When a person is given in 
adoption, he becomes cognate to every one to whom he becomes 
agnate, and he does not become cognate to any one to whom he 
does not become agnate; adoption does not create the tie of blood, 
but the tie of agnation. Hence, if I adopt a son, my wife is not in 
the place of mother to him ; he does not become agnate to her, 
consequently she does not become cognate to him; again, my 
mother is not in the place of grandmother to him, as he does not 
become agnate to those who are outside my family ; but any male 
whom I adopt [as a son] does become brother to my daughter, &* 
my daughter is in my family: and of course the two are not allowed 
to marry. 

24 ULPIAIOJS (Controversies 1) No one can be arrogated in his 
absence or without his own consent 

25 THE SAME (Opinions 5) On the death of a daughter who 
has been living aft an independent woman as if ia consequence of a 
lawful emancipation, and who before her decease appointed heirs 
by testament, the father is not allowed to take proceedings calling 
in question the validity of his own act, OH the alleged ground that 
the emancipation wan not made according to law nor in the 
presence of witnesses. 1, A man paunot adopt or arrogate any 
one without being present, nor can he, execute the required 
foraalitieH by an agent 

26 JUUANUB (Uif/est 70) A pernou whom my emancipated son 
adopts will not thereby Income my grandson, 

J7 THE SAME (Hid. 85) According to the civil law the son of 
an adopted on acquires the same position an if he were himself 
adopted 

18 GAIXTB (Institute 1) Any one who has in Impoteshw a son 
and a grandson through that aon is at full liberty to dismiss the 
Bon from his jwtwtas and retain the grandson ; or, couvernely, to 
retain the 8<>n in his potesta*, and emancipate the grandson ; or to 
make both mi juris : similar mien munt )>e held to apply in the 
case of a great-grandson, 

9 CALLISTKATUB (Imtitutw 2) Where a natural fother is 
unable to apeak, bxit is able to make plain by nome other method 
than Hpeech that he de&irca to give his BOH in adoption; the 
adoption is as fully upheld as if it had been effected with proper 
legal formality. 



TIT. vn] Adoptions and Emancipations 37 

30 i PAULUS (Rules 1) Even a maa who has no wife can adopt 
a son. 

31 MABCLASTUS (Rules 5) No son who is in the potestas of a 
father, whether by nature, or adoption, can in any way compel his 
father to let him be free from potestas. 

32 PAPiisriAsncrs (Questions 31) In some cases, however, where 
a boy under age has been adopted, he has a right to be heard, if, 
on arriving at full age, he desires to be emancipated, and the judge 
will have to decide after hearing the case. (1. The Emperor 
Titus Antoninus laid down that where a man is guardian to his 
stepson he must be allowed to adopt him.) 

33 MlAitciAmrs (Rules 5) And if, on arriving at the age of 
puberty, the boy can show that it was not to his advantage that 
he should be brought under the party's potestas, the just course is 
that he should be emancipated by his adoptive fether, and so 
recover his original legal position. 

34 PATJLUS (Questions 11) The following question has been 
raised. If a son is given you in adoption on the understanding 
that after, say, three years you will give the same son in adoption 
to me, is there any right of action against you? As to this, Labeo 
holds there is no right of action ; as it is not in accordance with 
our customs that a man shouTd have a son for a prescribed time. 

35 THE SAME (Responsa 1) The operation of an adoption is not 
to lower a person's station, but Ito raise it. Consequently, even 
where a senator is adopted by a plebeian, he remains a senator ; 
in the same way a man will remain the son of a senator. 

36 THE SAME (ibid. 18) It is recognised that a son can be 
emancipated by his fether in any place whatever, so as thereupon 
to be freed from patriot, potestas. 1. The law is that the act of 
manumitting or of giving in adoption can be executed before a 
proconsul, even in a province which has not bean Allotted to the 
proconsul in question. 

37 THE SAI^ (Sentences 2) A man can adopt a person as 
grandson even when he has no son. 1. Whcin^ a man has once 
adopted any one, then, if he should emancipate him or give him in 
adoption, he cannot adopt him again. 

38 MABCELLTJS (Digest 26) An adoption not made in proper, 
legal form can be made good by the W^yti 

39 ULPIAKUS (<M the cffice of Mfo($j this appears 
following rescript of the Divine mnms to Eutychiwu* H 



38 Adoptions and Emancipations [BOOK i 

judges will consider whether your application ought to be granted 
after hearing the parties who have objections to make, that is to 
say, those who would suffer if the adoption were confirmed.' 

40 MODESTINUS (Differences 1) On the arrogation of a pater- 
familitis the children who were under his potestas become grand- 
children to the arrogator, and fall under his potestas along with 
their own father. The aame result does not take place in an 
adoption [in the narrpwer sense of the word] ; the children of one 
who is [so] adopted remain under the potetfm of their natural 
grandfather. 1. Both where a man adopts, and also where he 
arrogates, he ought to be older than the person whom he makes 
Ms son by adoption or arrogation, and that by the period of full 
puberty ; in other words, he ought to be in advance of the age of 
the other by eighteen years, 2, One who is impotent can by 
arrogation acquire for himself a mu# hercs ; his physical defect is 
no oltetucle. 

41 THE SAME (ItulM 2) If a man who has in his jMtfuttt* a 
grandson through a son emancipates his son, and after that adopts 
him again, on his death the grandson does not come under the 
}>otc#t<w of his father. Similarly the grandson does not come under 
tho }Mt<'st(w of IUH father f on Inn grandfather's death], where his 
grandfather kcepn lain under jjoti'tittw on giving his son in adoption 
and subsequently readopts the eon. 

42 THE SAME (Pandect* 1) Even an infant can be given in 
adoption. 

43 POMJPOWIUS (on QnmtHS Mncins 20) Pernons may be adopted 
not only for BOUH but even for grandBonn, so OH to caune whoever is 
adopted to be deemed in law a grandson through a HOW, and not 
even uecoHHarily any particular BOH. 

44 PBOOULUB (Epi&tfas 8) If a man who ha* a grandson through 
a BOH adopte Borne other person into the ixwition of grandson 
[simply], I Bhould nay that on the death of tho grandftither there 
will be no legal tie of consanguinity between the grandHonw. But 
if he adopts him in xioh form *<w to make him as much MB grand- 
son by law and statute as if he had been born the son, aay, of 
Lucius the adopting party's son and of Luciua's lawful wife, I should 
hold the contrary 1 * 

45 PAULXTB (on the lesc Julia et Pwiw 8) The legal obligations 
of a person who i given It) adoption pass to the adoptive fother. 

1 Road, for ut etfom,..qua*i> uti tarn jurt l^e nepw HUM mot qwm *i. Of. 
H. ml Aul GclL & 19. 9, 



TIT. vn] Adoptions and Emancipations 39 

46 ULPIABTTJS (on fte lex Julia et Papia 4). A son begotten 
by me when I was in a condition of slavery may be brought under 
mypotestas by the favour of the Emperor : but there is no doubt 
that such a son will still be of libertine status. 



VIII. 
Off THE DIVISION OF THINGS AND THEIR EESPEOTIVB NATURES. 

GAIUS (Institutes 2) The main division of things ranges 

them under two heads ; some things being subjects of divine law, 
some of human. Subjects of divine law, for instance, are things 
sacred and religious. Things under a sanction (res samctce), more- 
over, as for example, walls and gates, are to a certain extent 
subjects of divine law. A thing which is of divine law is no man's 
property; but a thing which is of human law is for the most part 
the property of some one or other; still it is possible that it should 
be no man's property, we know that things comprised in an 
inheritance, until some one becomes heir, are no man's property. 
Such things as are subjects of human law are either public or 
private. Things that are public are held to be no man's property, 
they are in feet regained as belonging to the whole community; 
things are private that are the property of individuals, 1. Again, 
some things are corporeal, some incorporeal Corporeal are such 
as can be handled, for instance, land, slaves, raiment, gold, silver, 
and innumerable things besides ; incorporeal are those that cannot 
be handled, of which nature are such as consist of a righ^ ;for 
instance, an inheritance, a usufruct, au obligational claim, however 
acquired* It is beside the purpose to say that there are corporeal 
things contained in an inheritance; as it is equally true that 
produce which is taken from land [in exercise of a usufruct] is 
corporeal, and anything owing to a maa in pursuance of an obli- 
gation is for the most part corporeal, such as land, or a slave, or. 
money ; still the bare right of succession to ari inheritance and the 
right of usufruct and the right involved in ap obligational claim 
are all inocwrpor^al. To the sme <?l^fjjgp JW!^S rights at 
to urban and rustic tenements, or, as th^^ also called, t 

MAEOIAKUS (Institutes $) . . -$lAe .things are by 
law common; to aJJ, some belong #9 & community 
dome to nobody,- im>^r : 9anS' ib^e-to individuals ; 



40 On the Division of Things [BOOK i 

are acquired by various titles in the respective cases. 1. To begin 
with, by natural law, the following are common to all : air, flowing 
water, the sea, and consequently the seashore. 

3 FLOKEBTTIHUS (Institutes 6) Moreover pebbles, gems and 
generally things which persons find on the seashore at once become 
theirs by natural law. 

4 MABCIANUS (Imtitutes 3) Accordingly no one is debarred 
from entering on the seashore for the purpose of fishing, so long as 
there is no meddling with houses buildings or monuments ; these 
not being, like the sea itself, subjects of the jus gentium. The 
above was laid down by the Divine Pius in a rescript addressed to 
the fishermen at Formho and Capcna. L But rivers are almost 
all public, and so are harbours* 

5 QAIUS (Ewyday matters or Golden things 2) The uwe of 
river banks is public by the jus yeMtiutfy just as much uw that of 
the river itself. Consequently anybody is at liberty to bring a boat 
to land on the bank, to fasten ropeH to trees growing thereon, to 
dry netn and [for that purpose] to draw them up from the sea or 
to place cargo on the bauku* just an ho iw free to navigate the 
stream itself. Still the ownership of the banks iw vented in the 
pcrHons to whose land they are joined ; and connequently the trees 
that grow on the banks belong to the same person**. 1. Persons 
who fish in the noa are at liberty to erect' huts on the shore in 
which to take shelter ; 

6 MAKCIANUS (Imtitutes 8) BO fur does this go that those 
who build on the shore become in fact owner* of the soil, HO long, 
that is, as the building wtands ; no doubt, if the building falls 
down, then the nite will, by something like the law of postliminium, 
revert to itB former legal character, and, if HOIUC one else builds en 
the Hpot, the laud becomes his* L Of things which belong to a 
collective body and not to individuals we may take for examples 
theatres, racecourwes and the like in cities, or any other property 
which in any cane belongs to the city at large. Consequently a slave 
belonging to the city at large in not regarded as one in whom the 
individual citfoeuw have their respective shares, but as the property 
of the whole body (mfaemtas) ; hence the Divine Brothers laid 
down by rescript that a municipal slave can be examined by torture 
either for or againwt a citizen. For this reason again it is that the 
freedman of a city is not obliged to ask permission under the Edict, 
if he summons one of the citizens. 2* Sacred things, religious 
things and things under a sanction are no man's property, 3* Sacred 



TIT. vm] On the Division of Things 41 

things are those which have been consecrated by an act of the 
state, and not privately; consequently if any one affects to make 
something sacred on his own behalf privately, the thing does not 
become sacred but remains profane. If a temple is once made 
sacred, the site remains sacred even if the building should be 
pulled down. 4. But any one can make a place religious at his 
own will and pleasure, by burying a dead body on his own ground : 
and where several have a right to one burial ground, any one of 
them can bury there, even against the will of the others. It is also 
open to any one to bury on another person's ground with the leave 
of the owner ; and even where the owner only ratifies the act after 
the burial has taken place, the spot becomes religious. 5. Even 
an empty tomb is held on the whole to be a religious place, as is 
testified by Virgil. 

7 ULPIAJSTUS (on the Edict 25) However the Divine Brothers 
issued a rescript to the opposite effect. 

8 MARCUffiJS (Mutes 4) The word 'sanctus' (under a sanction) 
is used of whatever is defended and guarded against wrong or 
damage at the hands of men. 1. Samtus is derived from 
sagmina-, sagmina being certain herbs usually carried by legates 
of the Roman people to secure them against outrage, just as the 
legates of the Greeks carry* what are called /cypv/cta. 2. Again, 
in a municipal town,* the walls are under a sanction, according 
to what Oassius tells us was the opinion expressed by Sabinus, 
which he declares to be correct, adding that no one ought to be 
permitted to cast anything at or upon them. 

9 ULPIAKTJS (on the Edict 68) Sacred places are such as are 
dedicated by the state (publice), whether in a city or in the country. 
1. It should be understood that a public site can only be made 
* sacred* where the Emperor dedicates it or gives permission to 

' dedicate it. 2. A point that should be noted is that a sacred 
place is not the same thing as a sacrwium. A sacred place is a 
consecrated place, a sacrariwn is a place in which sacred objects 
are kept, and it may exist in a private building; moreover, when 
persons wish to divest such a place of its religious character, they 
commonly have the sacred objects removed by evocation 3. Tbfe 
word 'sanetus' is used in a special Sense to denote things which 
are neither sacred nor profeae, but are protected by some kind of 
'sanction' ; thus the term sarwtus is applied to statutes, because 
they derive their force from a |rfw*3ar sanction. Whatever fe 
maintained by some particular sanction is 'sanctum/ even though 



42 On the Division of Things [BOOK i 

it be not conseci-atecl to God. and sometimes it is added in the 
terms of the sanction itself that whosoever offends in respect of 
the object in question shall be capitally punished. 4. The walls of 
a municipal town are not even allowed to be repaired without the 
authority of the Emperor or the Pneses, nor may anything be 
united to them or laid tipon them, save on the same condition. 
5* A sacred thing cannot have a money value put upon it, 

POMPOXIOT f Eiufnrrt* from P/antlns 6) According to Aristo, 
just as anj thing built into the sea becomes private property, so 
anything over which the sea encroaches becomes public, 

POMPONIUS ' V<trhm pasMgrs 2) If any one trespasses on 
the walls, he suffer* capital punishment ; for example, if he climbs 
over them by the use of ladders, or by any other means : citizens 
of Itome are only allowed to leave the city by passing through the 
gates ; taking any other way is the act of an enemy, and of evil 
omen. In fact Hemus, the brother of Romulus, was put to death, 
BO tradition says, because ho desired to climb over the wall 



IX, 



1 ULPIANUS (MI the Edict 02 j All agree that a man of consular 
rank always takes precedence of a woman of consular rank- But 
it in a point to consider whether a man of pnofcctorian rank takes 
precedence of a woman of consular rank. I should hold that he 
does, because the male Hex deserves the greater honour. L By 
a woman of consular rank is meant the wife of a man of consular 
rauk ; or, an Saturninus adds, even the mother ; but for this l*w*t 
there in no express authority and it has never becu admitted in 
practice. 

2 MAEOELLUK (Diywt 3) Cassias Longinus holds that when 
a man haw been removed from the senate for disgraceful conduct, 
and has not been reinstated, he ought not to be allowed to it as 
judge, nor to appear us a witness ; since this IB against the fe# 
Jidia on extortion* 

3 MODBSTIOTS (IMcs 6) A senator who IB removed from the 
senate does not thereby nutter wtritU dmwwtfa, indeed the Divine 

and Antoninus allowed him to live in Borne* 



TIT. ix] Concerning Senators , 43 

4 POMPONIUS (Various passages 12) When a man is un- 
worthy of the lower rank he is still more unworthy of the 
higher. 

6 ULPIANUS (on the lex Julia et Pa/pia 1) By the expression 
'son of a senator ' we must understand not only one who is son in 
the course of nature, but an adopted son as well ; nor will it make 
any difference who it is that he was adopted from, nor what was 
the manner of his adoption. Nor is it material whether the party 
adopting was already of senatorial rank at the time of the adoption 
or only attained to that rank afterwards. 

6 PATJLTTS (on (he lex JuUa et Papia 2) The expression 
'son of a senator 7 applies to one whom the senator has adopted, 
but only so long as he remains in the senator's family ; if he should 
be emancipated, then by the emancipation he loses the name of 
son. 1. If the son of a senator is given in adoption by his father 
to a man of inferior rank, he is still regarded as being the son of a 
senator ; the rank of senator is not lost by an adoption proceeding 
from an inferior rank, any more than a similar adoption would 
make the party adopted cease to be of consular rank. 

7 ULPIAKTTS (on the lex Julia et Pwpia 1) If a man is 
emancipated by his father $rho is a senator, the law is that he 
should be treated as If he were the son of a senator. 1. Again, 
Labeo lays down that even one who is born after the death of his 
father who was a senator is on the footing of son of a senator. 
But where a man was conceived and born (sic) after his father was 
removed from the senate, then, in the opinion of Proculus and 
Pegasus, he is not on the footing of son of a senator ; and in this 
they are quite right ; a man cannot properly be called the son of 
a senator where his father was removed from the senate before his 
birth. No doubt if he was already conceived, before his father's 
removal from the senate, but born after his father's loss of rank, 
the better opinion is that he must be regarded as the son of a 
senator ; as most authorities hold that it is the time of conception 
that has to be considered. 2. If a man's fether and grandfather 
were both senators, he is regarded as on tfie footing both of son of 
a senator and grandson of a senator. But if the father lost h$ 
rank before the person in question w^ conceived, it may be asked 
whether he ought not to be regarded fii$ on the footing of grai)$3$& 
of a senator in spite of the fact that Ibe fe not regarded as son ; am 
the better opinion is that he oughivso that his grandfather's rank 



44 Concerning Senators [BOOK i 

is to his advantage rather than his father's loss of rank to his 
disadvantage. 

THE SAME (Fidacommissa 6) Women who are married to 
men of honourable 1 rank (clarissitni) are included under the term 
honourable. Daughters of senators are not comprised under the 
expression honourable women [after marriage], except where they 
have found honourable husbands ; husbands give honourable rank 
to their wives, but parents only do so to their daughters unless 
and until the latter marry plebeians; accordingly a [married] 
woman is " honourable " only when she is the wife of a senator, or 
of any honourable man, or, if she hag come to be separated from 
such a husband, has not married any one else of lower rank. 

PAHHIANUS (Response 4) Where the daughter of a senator 
affects to marry a freedman, IOBK of rank on the part of her father 
does not make her a lawful wife ; a* [, conversely,] the rank which 
a man has once communicated to hin children will not be taken 
away by the fact of the father lowing hi Hiatus by removal from 
the senate. 

ULPIANUS (on tJu> Edict 34} By the expreswion children of 
senator** we muwt understand not merely the BOHH of senators, but 
all thoHC perwouK who are shown to be the children of senators or 
of their son**, whether the senator** 1 rfonn whose children they are 
tthown to be wore wona by nature or by adoption* But where a man 
was the child of the daughter of a senator, what we have to look at 
is the rank of his father. 

PAULTTB (on tlw Edict 41) Though senators are said to have 
their domicile in the city, still they are also regarded as having 
their domicile in the place of their birth ; their rank is held rather 
to give an additional domicile than to give a new one in place of 
the old. 

UrjHANUB (on registration 2) Women once married to men 
of consular rank may procure leave from the Emperor, though it is 
very sparingly given, enabling them, if they contract subsequent 
marriages with men of lower rank, to retain their consular rank all 
the while. I know, for instance, that Antoninus Augustus accorded 
this privilege to his cousin Julia Mammaoa. L The term senators 
we must understand to imply personn descended from patricians 
and consuls or any illustrious [ilhtstre*] men; as in feet such 
alone have the right to speak in the senate. 

* Seo Gibbon c. 17. 



TIT. x] On the office of Consul 45 



X. 

ON THE OFFICE OF CONSUL. 

ULPIANUS (on the office of Consul 2) It is the duty of the 
Consul to appoint a board [consiliim] for persons who propose to 
execute a manumission. 1. Individual consuls can manumit by 
themselves ; but no one who enters the names with one consul can 
manumit before another; every manumission is confined to the 
court of one consul. It is true that it has been laid down by the 
senate that if one of two colleagues is for any reason unable to 
manumit, because he is hindered by illness or any other sufficient 
cause, the other can take the manumission. 2, There is no doubt 
that a consul can manumit his own slaves in his own court Should 
it however happen that the consul is under twenty years of age, he 
cannot manumit in his own court, as he is the very person on 
whom the decree of the senate casts the duty of examining the 
ground for requiring a board, but he can manumit in the court of 
his colleague, if the ground is held to be established. 



XL 
ON THE oraroE OF Prcefeetws Prcetorio. 

AUBELIUS AKCADIUS CHABisitrs master of the Itibelli (<m (he 
office of Prcefeclm Prastorio] It is requisite to state briefly 
what was the history of the original creation of the office of 
Prefect to the Proetorium, We are informed by certain writers 
that prefects to the Prsetorium were anciently established in the 
place of the Magister Eguitvm ; for whereas, in the days of our 
forefathers, dictators were from time to time entrusted for a 
definite period with supreme power, and used thereupon to choose 
Magisbri Equitum who were joined to them as partners in their 
duties in connexion with military matters 1 , and occupied the next 
place of authority under them, it came to pass that, when power far 
the state was transferred to permanent Emperors, prefects to the 
Pratorium were appointed by the head of the state on the model 
of the Magistoi Eqwtom* These ^officers were entrusted with 
ampler powers witb a view to the improvement of public discipline. 

1 Read ad euros for cures ad, 01 M. 



46 On the office of Prsefectus Praetorio [BOOK i 

1. Such being the origin of the authority of the prefects, it sub- 
sequently obtained so great an extension that no appeal can be 
made from them. In fact, though it once was a question whether 
an appeal from these prefects was admissible, which in strict law it 
was, and cases were on record of appeals being made, still, by an 
imperial order which was subsequently rehearsed in public, the 
right of appeal was taken away, the Emperor being of opinion that 
men who were called to the exalted station conferred by this office 
in consequence of their special assiduity and upon proof of their 
being men of honesty and character, would, considering the wisdom 
and enlightenment which went with their rank, pronounce similar 
decisions to those which he would have given himself. 2, The 
praetorian prefects enjoyed another privilege as well ; minor* were 
not allowed to get a rextitttfio hi ittfef/rnni after one of their 
judgments in the court of any magistrate who was not a praetorian 
prefect himself. 



m 

<)X THK OFKU'K OF Pnt'ftctUH 

UMM ANUH (on tlw office of Prqftrt of the <7/Y//j AH declared 
in an epiwtle of the Divine KeveruH addrewcd to FabhiB Cilo, 
prefect of the city, the jurisdiction claimed by that magistrate 
embrace* all criminal offence** of every kind, not only such aw are 
committed within the city, but also I Home 1 which are committed 1 
in Italy, though without the city. 1. Where duvet* flee to ntatues 
for refuge, alno where they have been bought with their own 
money with a view to mammuHHion, the prefect will hear their com- 
plaint* a#uiunt their owners, 2. He will also entertain applications 
by impecunious patronw who complain of their freedmeu, especially 
where they allege that they are hi ill health and denire that their 
freedmcn should support them, 3. He haw the power of relegation 
jmd deportation into any island which the Emperor may prescribe* 
4 The opening word** of the epintle referred to are these: 'a we 
have entrusted our city to your care ' ; coiiRequoutly any offence 
that in committed within the city imwt be held to be a matter 
for the prefect DonidcH thin, any offence committed within the 

1 Tflflrrt ftotittm nrart bo incorrect or a ohumty intorpolatiou ; v. subs. 4 ; to 
help iho wonHo I lmv ineortod *<mio'. 



TIT. xn] On the office of Prsefectus CJrbi 47 

hundredth milestone is a matter for the prefect ; if it is beyond 
the milestone, it lies outside his jurisdiction. 5. If a man's 
complaint is that his slave has committed adultery with his wife, 
the case may be brought before the prefect 6. He may also be 
applied to for an interdict quod vi aut clam or unde vi\ 

7. Moreover guardians and curators are brought before the 
Prefect of the City where they act corruptly in respect of their 
guardianships or curatorships, and the case requires such severe 
treatment that it is not adequately met by the infamy consequent 
on de &u#pecto proceedings ; for instance, where it can be shown 
that a man got into a guardianship by bribery, or was himself 
bribed into taking measures to prevent some ward having a proper 
guardian appointed, or that, when called upon to disclose the 
amount of the property, he deliberately understated it, or that 
he disposed of the ward's goods with plainly fraudulent intent. 

8. With regard to the above statement, that the prefect will 
hear complaints by slaves against their owners, wl must not 
understand this to mean that slaves may bring criminal charges 
against their owners, (this a slave is by no means to be allowed to 
do, except in certain recognised cases,) what is supposed is that a 
slave makes a respectful representation ; slaves may, for example, 
bring before the prefect cases of cruelty or harsh treatment or 
insufficient sustenance which* they have had to suffer, or indecent 
assaults to which they*are or have been compelled to submit. The , 
Divine Severus imposed this further duty on the Prefect of the 
City that he should protect slaves from compulsory prostitution. 

9. Furthermore, the prefect will be bound to take measures to 
secure that moneychangers conduct themselves honestly in all 
branches of their business, and forbear unlawful* practices. 10. If 
a patron alleges that he is slighted by his freedman, or complains 
that his freedman is insolent to him, or that he or* his children or 
his wife has had to put up with abusive language from him, or 
makes any similar charge ; the proper course is to apply to the 
Prefect of the City, who will punish the freedman according to the 
misbehaviour complained of. The usual way of dealing with the 
offence is to warn the man or to order him to be beaten, or to 
take still stronger measures in the way of punishment; as a matter 
of fact, freedmen are liable to punishment in a great many cases. 
There is no doubt' that if the patron J c*& show that his freedman 
brought a criminal charge against Mm/or conspired against him 

1 R&d aut unde m adiriiw wide vi audire. Cf. M. 
3 Bead -ve for 'w*& il 



50 On the office of the Praetors [BOOK i 

on Rome other legal ground? My own opinion is that nothing would 
be set aside, and thia is the more indulgent view ; the Roman 
people was quite competent to confer the authority in question, 
even on a slave ; and, if they had known that he was a slave, they 
would have given him his liberty. Much more must this power be 
held good in the cane of the Emperor. 

I UI.PI ANUS (on all the Courts I) A praetor cannot appoint 
himself to be guardian, or to be jtidew in some particular case. 



XV. 
Ojs: THE OKPIOB OF JPrwfectus Viyilum. 

PAUTAJB (on the office of Prwfvfifots Viyilmi) In old days 
the buninoHB of preventing firen was superintended by the Threemen, 
who, because they kept watch at night, were called Wrimmri 
noctnrwi; HometimeH todilcs and tribunes of the plebn took a part 
in the service. There wan a body of government slaves stationed 
about the gate and the walln, who could be called out if necessary; 
and bcHidcH them there were gangs of nlavew belonging to private 
owners whone duty it was to put out fires, either for pay or 
gratuitously. Lastly, the Divine AuguntUH thought proper to have 
the iniHchief dealt with by a provision of hi* own, 

ULHANUB (on tJw <$& of Pwfwtm ViffShwt) a number of 
ftren having, on a particular occasion, occurred in one day. 

PAUUJB (on the ojfffcM of PrttfrefoM Viyilwm) As the business 
of looking after the public safety wan, so ho hold, suited for no one 
so well an the Kmperor himself, nor wan any otic elne equal to the 
duty, he therefore stationed woven detachments in suitable places, 
each detachment to protect two dintrictH of the city ; they wore to 
be commanded by trihunoH, with un officer at the head of them all, 
of the elans of HiMwtubilM, called the prefect of the watch- 1. This 
prefect deals with canon of incendiaricH, housebreaker**, thieves, 
robbeni, harboureni of thieven, unlcHH in any particular inntance 
the offeiuler i a ponum of uch ruftiauiy and infainouB character 
that the cawe in sent on to the prefect of the city. Conflagrations 
iu mot owen may be attributed to the negligence of occupiers, 
accordingly, where pernotm have paid innuflicient attention to their 
fire, the prefect either ordern them to be beaten, or else he remits 
the beating, but givew the parties a Bevere warning. 2. House- 
breaking is for the most part committed in blocks of chambers, or 



TIT. xv] On the office of Prafectus Vigilum 51 

in warehouses where people store the most valuable part of their 
property, and the housebreaker breaks open a storechamber or a 
closet or a chest ; in which case punishment is generally inflicted 
on the caretakers, and this agrees with a rescript of the Divine 
Antoninus to Erucius Claras. The Emperor tells him that, if his 
warehouses were broken into, he can examine by torture the slaves 
who had to guard them, even though the Emperor himself should 
be a part-owner of the slaves. 3. It should be mentioned that the 
prefect of the watch is bound to be up the whole night and to go 
the rounds with his men, wearing the proper shoes, 4. and pro- 
vided with hooks and axes, and they are to take care to warn all 
householders to see that no case of fire arises through want of 
attention. Moreover he is ordered to remind every one to have a 
supply of water ready in his upper room. 5- He has also judicial 
authority over the boxmen (capsa/rii)^ who engage for hire to take 
charge of people's clothes at the baths, so that if they should be 
guilty of any malpractices in connexion with the above duty this 
magistrate deals with the case. 

ULHAOTS (on the office of Pratfectm Urbi) The Emperors 
Severus and Antoninus sent a rescript to Junius Rufinus the 
prefect of the watch in the following terms: "if occupants, of 
blocks of chambers or other .persons carelessly omit to attend to 
their fires, you can order them to be beaten or scourged ; as for 
any who may be proved guilty of wilftil arson, you may send them 
on to my friend Fabius Gilo, the prefect of the city; runaway 
slaves you must hunt up and send back to their owners.' 9 



XVI. 

OK THE OOTIOES OF PROCONSUL AOT) LEGATE. 



(Oontrowrsm 1) The proconsul may display 
anywhere the insignia of his office as soon as he is outside the city, 
but he only exercises authority within the actual province which 
has been assigned to him, 

MABCIASHJS (Institutes 1) All proconsuls can exercise 

jurisdiction as soon as they have left the city, not however 
contentious jurisdiction, but only voluntary; for example free 
persons [can fa ewmebpated] and slaves can be manumitted, in 
their court, and adoptions can be executed there. 1. No one can 

42 



52 On the offices of Proconsul and Legate [BOOK i 

manumit in tho court of the proconsul's legate, as he has not the 
requisite jurisdiction ; 

S ULPIANTJS (on Sabinm 26) nor can a man adopt before 
him : in short, the legate cannot take statute actions at all. 

i THE SAMJB (on the office of ProcoMMd 1) The proconsul 
ought to be careful not to be burdensome to the province in the 
matter of providing quarters, HO the present Emperor and his 
father laid down in a rescript addressed to Aufidius Severianus. 

1. No proconsul is at liberty to have his own grooms ; instead of 
these, in the provinces, soldiers discharge the service required. 

2. It i better that the proconsul should net out without his wife ; 
still he can have his wife with him, if lie likes, only he must under- 
stand that the senate hold, in the consulship of Ootta and Messala, 
that if any offence were committed by the wife of a man who went 
out to occupy an official position, account and satisfaction would 
have to be demanded from the huwband himself, & Before 
crossing the boundary of the province assigned to him, the 
proconsul ought to issue a proclamation announcing his arrival 
and containing Home kind of recommendation of hiniHolf, by 
reference to any pernonH living in the province with whom he 
may l>e acquainted or connected, and above all the proclamation 
should excuse 1 the inhabitants from coming to meet him either 
publicly or privately, on the ground that it IH moat suitable that 
uny person* who received him should do HO iti their own country, 
4. He will be acting correctly and in accordance with the proper 
order of proceeding if he Bends an announcement to the retiring 
proconsul to inform him on what day he will make his entry ; very 
often events of thin kind, if they are unexpected and uncertain as 
to time, are distracting to the provincial population, and interfere 
with buHwehs. fi. When he entcrn he ought to take care of the 
following point too; he Hhould make IUH entry into the province 
at the particular upot at which it in customary to do so, and 
whatever city he firnt arriven at, cither by land or sea, he should 
attend to what the Uwekn call the "cpidcmitc" or the "cataplus" 
(placoK of Htay and port of arrival); OH the provincial people are 
Hare to net great store by tho observation of customs and privileges 
of thin kind. Home province* have thin particular distinction, that 
the proeoiiHul always arrive** by Hea ; one of these is Asia, in fact it 
hoH gone HO far that the present Kmperor Antoninus Augustus, iu 
answer to a recent on the part of tho Asiatic provincial*, announced 

1 Hotul /u!Ww*A* for wcHtanfa. Of. M. 



TIT. xvi] On the offices of Proeonml and Legate 53 

by rescript that the proconsul was absolutely bound to arrive at 
the province of Asia by sea, and land at Ephesus first of all the 
metropolitan cities. 6. After this, having made bis entry into the 
province, he ought to delegate his judicial powers to his legate, but 
he must not do so before he has entered ; as it would be highly 
absurd if before he had acquired the jurisdiction himself, and as 
a matter of fact he is not competent to exercise it before his 
entry, he were to assign it to some one else, not having got any 
jurisdiction to assign. However if he should assign it before entry, 
and then, after entry, continue of the same mind, it would probably 
be held that the legate had the jurisdiction, not, that is, from the 
time when it was delegated, but from the time at which the 
proconsul entered the province. 

5 PAPINIANXTS (Qitestions 1} Sometimes a proconsul can 
delegate his judicial powers though he should not have yet come 
into the province ; suppose, for instance, he should be unavoidably 
delayed on his journey, whereas the legate was in a position to 
reach the province very early. 

6 ULPIABPCTS (on the office qf Proconsul 1) It is usual for the 
proconsul to assign -to his legates 'the office of examining prisoners, 
the object being that they should first hear what the prisoners 
have got to say, and .then send them on to him, they themselves 
releasing any innocent prisoner. But a delegation of this kind is 
irregular ; as, when a man has had given him the power of life and 
death, or of inflicting any inferior punishment, he cannot transfer 
it to another, and it follows that he cannot transfer the right of 
discharging accused persons, where that other is not qualified to 
hear the charge against them. 1. The proconsul being free to 
assign his judicial powers or not to assign them at his own 
discretion, so too, after assigning them, he has a right to recall 
the assignment ; still he ought not to do so without consulting the 
Emperor. 2. A legate ought not to consult the Emperor; he 
should go to his own proconsul, and this latter is bound to give an 
answer to any legate who consults him. 3. A proconsul is not 
obliged to make an absolute point of declining presents, but he 
muat use moderation; in short, he need- not be so scrupulous as to 
decline them altogether, but he must not be so grasping as to 
accept them to an excessive amount This matter is put very well 
in ft letter of the Divine Severus and the present Emperor 
Antoninus, in which they set down the limitations to be observed 
in this matter; the word* aare a* follows: "With regard to 



54 On the offices of Proconsul and Legate [BOOK i 



presents, what we hold is this, there is an old saying, 
everything, nor every day, nor from everybody ' ; of course it is 
very discourteouR to accept no presents at all, but it is a very 
contemptible thing to accept them indiscriminately, and to accept 
all is absolutely sordid/' With regard to the injunction contained 
in the proconsul's instructions, that neither he nor any other officer 
is to accept any gift or present or make any purchase except of 
supplies for everyday subsistence, this does not apply to trifling 
gifts, but only where the amount is beyond what is required for 
ordinary consumption. Still, on the other hand, presents must 
not be taken to such an extent as to make them amount to 
positive largess. 

TIIK SAME (ibid. 2) If the proconsul arrives at some 1 

populous city, or at the chief town of the province, he must 
allow the place to l>e formally commended to him, and show 
no impatience at receiving a complimentary address, as the 
provincial population claim the right of doing these things 
a an honour to themselves; he ought also to allow holidays in 
accordance with the custom** and linages theretofore in vogue. 
1. lie ought to go round the temples and public works in order 
to examine whether they arc in proper repair or require to be in 
any way restored, and, if there are ai>y which are only in course of 
construction, ho ought to see that they are completed, so far as the 
resources of the municipality admit ; lie ought also to appoint in 
the regular form careful superintendents of the works, and, if 
necessary, provide military attendants to support them* 2. As 
the proconsul has plenary judicial authority, he unites in himself 
the attributes of all those who administer justice at Jtome either as 
magistrates or in virtue of extraordinary powers: 

8 THM HAMJM (on the Editit 89; so that he has the highest 
authority in the province after that of the Kmperor, 

9 THB HAMK (on the <$i<w of Pwwnwid Ij and no legal 
matter can arise in the province which he is not competent to 
diHi>oe of. It is true that if a j>ecuwary question is raised which 
concerns the revenue and comes within the province of the imperial 
jnwewwtor, he will do well not to meddle with it L Where a 
[judicial] decree is required, the proconsul cannot dispose of the 
matter by * Kbettw ' ; matters which require that a caae should be 
entertained judicially cannot be so disposed of. S. The proconsul 
ought to l>e patient with pleaders, but he must maintain his 

* Head idiqmm Cor aliam qiMtn. Of, M, 



TIT. xvi] On the offices of Proconsul and Legate 55 

character, so as not to appear abject, and he ought not to shrink 
from saying what he thinks, if he finds that there are people who 
trump up cases or buy titles, nor should he allow any one to make 
a motion before him, except those who have a right to do so 
according to the terms of his own edict. 3. Some kinds of cases 
the proconsul can dispose of out of court (de plcvno) ; he can in 
this way order that members of a family shall show proper 
deference to their paterfamilias, or freedmen to their patrons 
and patrons' children ; he may admonish and put in dread out of 
court a son who is brought before him by his father on the 
alleged ground that he is leading an improper life ; in the same 
way he may correct an insolent freedman either by reprimand or 
by beating. 4. He is bound therefore to take care that applications 
are made to him in some regular course, so that, in short, every one 
who has a request to make may get a hearing, lest it come to pass 
that, if concession is made to the rank of one applicant or the 
importunity of another, persons in a humble position, who either 
have not secured the assistance of advocates at all or else have 
only found such as are inattentive and men of no station, will be 
unable to state their claims. 5. It will also be his duty in most 
cases to allow the assistance of counsel to women or persons who 
are under age or otherwise ^helpless, or to such as are out of their 
mind, if any one asks* for it on their behalf; or, if no one asks, he 
ought to allow it of his own accord. Again, if any one should 
declare that he is unable to get counsel, owing to the power of his 
opponent, in this case too the proconsul ought to find him one. It 
is not allowable that any one should be borne down by the power 
of his opponent; in fact it tends to bring odium on the officer 
himself who is at the head of the province, if there is some one 
who behaves with so little self-restraint that nobody will venture 
to undertake to appear as a pleader in opposition to him. 6. The 
above observations apply to all governors equally, and they ought 
to be attended to by others as much as by the proconsul. 

10 THE SAME (ibid. 10) It must be borne in mind that until the 
new proconsul arrives, the retiring proconsul is bound to go on 
discharging all duties ; the proconsulship is one continuous office, 
and the interests of the province require that there should be 
some one there by whose action the -provincial inhabitants can 
get their business disposed of: accordingly he is bound to ad- 
minister justice until 'the new prWwwul arrives. 1. Dismissal 
of his legate before be leaves the province himself is a thiag 



56 On the offices of Proconml and Legate [BOOK i 

which he is warned against doing by the lex Julia on extortion and 
also by the rescript of the Divine Hadrian to Calpurnius Rufus, 
the proconsul of Achaia. 

L VENULEIUS SATTJEKINUS (on the office of Proconsul 2) If 
any oifence is committed which requires specially severe punish- 
ment, the legate ought to have the cane removed to the court of 
the proconsul : he has not himself the right to put to death or 
imprison or inflict a severe flogging. 

5 PAUJUTS (on the. Edict 2) A legate who exercises jurisdiction 
in pursuance of a delegation has the power of appointing &jude% 

J POMPONIUH COM QiifufiM Mndus 10) Legates of the pro- 
consul have no authority of their own, so long as no jurisdiction 
has been delegated to them by the proconsul. 



(on the IM Julia ct Papttt 20j. A proconsul does 
not have more than nix 



5 LrowNius Ihwimrs (Rule* 8) The proconsul's legates can 
themselves appoint guardians. 

5 UU'IANUS (OM the Etllfit t2) AH soon as the proconsul passes 
the gate on entering Rome he lays aside his imperium. 



XVII. 
ON THK <>FKr<^ OF Prwfottw Auyustalis. 



(on the Kdlti 15) The prefect of Kgypt does not 
divest himself of the prefectnhip, or the right of imperiuvn given 
him by statute under AuguntuH on the model of the proconnulship, 
until hiw HiicceHHor haw actually entered Alexandria, even though 
the latter Hhotild have arrived at the province ; thia is set down in 
the prefect*** iiiHtmctiouH. 

XVIIL 

O^r THK OFFIOK OF l*!WM& 

i MAOER (on the ojffiw o/ pruww 1) The title of presses is a 
term of general nignification, consequently proconsuls and imperial 
legate** and governors of provinces* in general, though they should 
be Heiuitora, are called pr#wde#i the term proconsul is of special 
application* 



TIT. xvm] On the office of Prceses 57 

2 ULPIANUS (on Sabinus 26) A. prceses can adopt in his own 
court, just as he can emancipate a son or manumit a slave. 

3 PAULUS (on Sabinus 13) The prceses of the province has 
a right of imperium over the men of his own province only, and he 
has the right only while he is in the province ; if he leaves it he 
becomes a private person. Sometimes he has imperium even over 
outsiders, if they commit any active offence; it is part of the 
instructions given by the Emperor that the governor of the 
province shall take measures for ridding the province of evil- 
disposed persons, and no distinction is made as to the place from 
which such persons come. 

4 ULPLAOTS (on the Edict 39) The prceses of the province 
has the highest authority in his province after that of the Emperor. 

5 THE SAME (on all the Counts 1) The prceses of the province 
cannot appoint himself guardian any more than he can make 
himself judex in a particular case. 

6 THE SAME (Opinions 1) The prceses of the province is 
bound to put a check on unlawful demands and such as are made 
with duress, also to the practice of making persons contract sales 
and execute assurances by putting them in terror, or by promising 
money which then is not paid. The prceses is also to see that no 
one makes gain or suffers loss unjustly. 1. The,acttfed truth is 
not affected by a mistake of gossiping reporters 1 ; the prceses 
should follow whatever is the proper course considering established 
facts. 2. The prceses of the province should make it matter of 
conscience to see that persons of influence and resource do not 
inflict any wrong on those in humbler station, and do not pursue 
such as take up the cause of these latter with vexatious charges 
where they are innocent 3. The prceses of the province ought to 
take care to keep down unauthorized offerers of aid who, on 
pretence of a desire to support officers in military command, 
proceed to alarm the public ; and, where any such are found, he 
should repress them ; he should also prevent unlawful exactions 
being made on pretence of levying taxes. 4. The prceses should 
make it a matter of particular concern that no one should be 
prohibited from caonrying on any lawful business, and also that 
nothing that is prohibited should be practised, and that no penalties 
shcnild be imposed on innocent persons, 5. The prceses of tha 
province will take care that men of small means shall not suffer 

1 Bead g&tiorum for #e*tarum. Of. M. 



58 On the office of Presses [BOOK i 

the wrongful treatment of having their sole light or their scanty 
furniture taken from them for the use of others on the ground of 
the arrival of official attendants or soldiers. 6. The prases of the 
province must see that nothing is done on the alleged behalf of 
soldiers which does not serve their general needs, by some of the 
number who put forward an unfair claim for some advantage 
confined to themselves. 7- The event of death ought not to be 
laid to the account of the physician ; but it is equally true that he 
ought to be held anwwerable for any mischief which he has 
occasioned by want of skill ; the wrong done by one who gives 
incorrect advice at a dangerous crisis ought not to be set down to 
human frailty and so treated as no offence at all. 8. Officers who 
rule whole provinces have the power of life and death, and they 
have authority given them to nend offendera to the mines. 9. Where 
the ;>w/w5tf, after imposing a fine, discovers that it cannot be 
dincharged oxii of the prcnent meant* of the persons whom he has 
ordered to pay it, ho imwt check improper eagerneHB on the part of 
the official who has to demand the money, and relieve the party 
front proHHtiro 1 for payment When a fine IB remitted by the 
governor of the province on the ground of poverty, it ought not to 
be exacted 



7 THK HAMK (ibid* 8; The prwiMfi of the province ought to 
inspect InuldingK, mid, on wufficicnt cauwe 'appearing, compel the 
owners to repair them, and, in cone of refiiHal, ho should employ 
lawful meaim for remedying the unnightly condition of the premises. 

8 jTTLiANtTH (I>J(jct Ij I have often heard the present Em- 
peror declare that where a rencript Hayn "You can apply to the 
officer who in ut the head of the province," thin does not put the 
procouHul or his legate or the pr<mw of the province under the 
ncccHHity of undertaking to hear the CHHC, he imwt consider whether 
he ought to hear it hiuiHelf or appoint njwltiSB. 

9 CALUHTHATCTH (on judfcitil /Vw/wmVw 1) AH a general rule, 
whenever the Kmporor MMUM a rcwcript by which he rcfcrH a matter 
to the prawx of a province ; for example, whore he ways "You 'can 
apply to the officer who IK at the head of the province," perhaps 
adding "he will conxider what ntepw ho ought to take," the pro- 
coriHul or the legate iw not put under the ncccHHity of undertaking 
to hear the cane ; but* even if the wordw " he will consider what 



lieud newiiitati for tt<;*vwn*tafa Of. M, 

ted hiBoreud. before* qwtmfii*, <loloid* before it <x**t> dtto. Of* M. 



TTT. xvm] On the office of Prceses 59 

steps he ought to take " are not added it is his duty to consider 
whether he ought to hear it himself or appoint a judex. 

10 HBBMOGBNIANTFS (Epitomes of Law 2) In all cases which 
are heard at Borne by the preefect of the city, or the praetorian 
prefect, or, again, by the consul, or the prator, or any other 
Roman magistrate, the proper tribunal in the provinces is that of 
the corrector or the presses. 

11 MAJaoiANXTS (Institutes 3) In the provinces all kinds of 
applications come within the competency of the prceses, though at 
Borne they are made to a number of different judges : 

12 PROCTTLUS (Epistles 4) But although the officer who is at 
the head of the province has to occupy the place and discharge the 
duties of every Roman magistrate, still it is his duty to consider 
not so much what is done at Borne as what the case requires. 

IS ULPIANUS (on the office of Proconsul 7) It may be expected 
from any prceses of character and conduct that he should take care 
that the province which he governs shall be settled and orderly. 
This he will have no difficulty in bringing about, if he studiously 
aims at securing that the province shall be clear of bad characters, 
and he accordingly seeks them out; in fact he is bound to seek 
out persons guilty of -sacrilege, highway robbers, manstealers and 
thieves, and punish them according to their respective offences ; he 
should also restrain those who give them shelter, as without such 
assistance a highway robber cannot long escape detection. 1. In 
the case of lunatics whom their friends cannot keep under control, 
the prosses ought to apply a remedy, viz. that of confining them in 
prison. This was laid down by the Divine Pius. It is true that 
the Divine brothers held that, in the case of a man who was guilty 
of parricide, an inquiry should be made as to whether he was 
feigning madness when he committed the deed, or was really and 
truly out of his mind, so that if he was feigning he might be 
punished, but, if he was insane, he might be detained in prison. 

* 

14 MAOTR (on mmmal trials [judicia pubUea] 2) The Divine 
Marcus and Oommodus issued a rescript to 'Scapula Tertullus in 
these words : "If you have clearly ascjerteoned that ^Elius Priacus 
is in such a state of insanity tha^he'is permanently out of his 
mind and so entirely Incapable 6f teaming, and no suspicion B 
left that he was simulating install^ i&eto he killed his mother/ you 
need not concern ytwself with ihe question how he should be 



60 On the office of Prceses [BOOK i 

punished, as his insanity itself is punishment enough. At the same 
time he must be closely confined, and, if you think it advisable, 
even kept in chains ; this need not 1 be done by way of punishment 
so much as for IUB own protection and the security of his neighbours. 
If however, a is very often the case 2 , he has intervals of sounder 
mind, you must carefully inventigate the question whether he may 
not have committed the crime on one of these occasions, and so 
have no claim to mercy on the ground of mental infirmity ; and, if 
you nliould find that anything of this kind is the fact you must 
refer the case to us, so that we may consider, supposing he 
committed the act at a moment when he could be held to know 
what he was doing, whether he ought not to be visited with 
punishment corresponding to the enormity of his crime. But when 
we learn by a letter from you that hiw position in respect of place 
ami treatment in nuch that he in in the handtt of hin friends, even if 
confined to his own house, your proper course will be, in our 
opinion, to summon the pernonw who had the charge of him at the 
time and uncertain how they came to be HO remiss, and then 
pronounce upon the cane of each separately, according as you see 
anything to CXCUKO or aggravate his negligence. The object of 
providing keepers for lunaticH IK to keep them not merely from 
doing harm to themselves, but from bringing destruction upon 
others ; and if thin last-mentioned mischief should come to pass, 
it may well bo net down to the negligence of any who were not 
Miflidently agHiduowi in the discharge of their office* 1 ' 

15 MAKOIANXTH (OM mwtmcf trials I) One point requires 
attending to : the officer who governs a province must not pass the 
boundary, nave for the purpose of discharging a vow, and even 
then he muni not Hpend the night beyond the border* 

18 MAORI* (on thp qffiw ofPvww 1) It it* provided by a decree 
of the senate that action** must be entertained very sparingly 
on any quoHtioiiH arising upon contract** made by provincial 
governor* or their suite or their freedmen before they came into the 
province, it being understood that where any tmch person forbears 
to bring an action in consequence of this rule, the right of action 
will be restored to him after he leaves the province. But if any- 
thing happen involving no act of his own, for example, he is the 
victim of Homo ittfurift or ttioft,the court will HO far entertain his 
case an to lot him proceed to litfa MHtwMio, and then an order 
can be made that any property stolen uhonld be produced and 
1 Rood qwd n<m for $ww"rtw. Of. M, '* rit uisorewtL 



TIT. xvm] On the office of Presses 61 

deposited, or that a promise should be given with security that 
the party should appear to the action or that the thing will be 
produced. 

17 OELSUS (Digest 3) If the praxes of the province should 
happen to manumit or appoint a guardian before he has had notice 

* that his successor has arrived, these acts will be held valid. 

18 MODBSTIKTJS (Rules 5) It is provided by plebiscite that no 
prasses shall accept a gift or present, save one of eatables and 
drinkables for a few days' consumption. 

19 OALLISTRATXTS (on judicial inquiries 1) The magistrate 
who dispenses justice should take care to be quite ready to entertain 
applications, but he should not let anyone treat him with disrespect 
Accordingly it is inserted in the instructions given to the governors 
of provinces that they are not to allow the provincials to be on a 
footing of easy familiarity ; as intercourse on equal terms is apt to 
lead to rank being disrespectfully treated. 1. Again, when the 
governor is hearing a case judicially, he should not fire up against 
persons of whom he has a bad opinion, nor ought he to be moved 
to tears by the entreaties of those in distress ; a man is not 
behaving like a firm and good judge who 1 allows his countenance 
to betray his feelings. To put it in a few words, the judge should 
so administer justice ^as to allow the impression produced by Ms 
personal character to enhance the authority of his rank. 

20 PAHNIANUS (JResponsa 1) The imperial legate, that is, the 
prmes or corrector of the province, does not by resigning his office 
lose his right of impetriwrn* 

21 PAPINIANUS (on the office of assessors) Where the prceses 
has before him a case of a slave being corrupted, or a female slave 
being debauched, or a male slave being unnaturally assaulted, 
then, if the slrive alleged to be corrupted is the overseer of some 
absent* person, or is in such a position that, over and above any 
loss in respect of property, the mischief amounts to the ruin of the 
owner's whole establishment, he ought to inflict very severe 
punishment on the offender. 

1 cttfu* perhaps slipshod in the author quoted : ri ctgws would be more gram- 
matical 

* Bead afaentit for agentis. Of. M. 



62 On the office of Imperial Procurator [BOOK i 

XIX. 

ON THE OFFICE OF IMPERIAL PROCURATOR OR IUTIOSTALIS. 

1 ULPIAKCJS (on the JEdlct 16) Any acts and deeds of the 
imperial procurator are acknowledged [? comprobantur] by the 
Emperor as if they were the Emperor's own acts 1 . If the 
imperial procurator should deliver something belonging to the 
Kmperor as if it were hin own, I should say that he does not pass 
the property in it ; ho only IKUWCH the property when be is acting 
in the Kmperor's behalf and delivers with his consent In fact if 
he does any act by way of effecting a sale or a donation or a 
compromise of matters in dispute, it in void ; as it is no part of his 
duty to dinpoHe of the Kmperor ' property, but to administer it 
carefully. 2. The following is a special attribute of the imperial 
procurator ; a slave of the Kmperor can enter on an inheritance by 
his order, and, if the Kmperor should be appointed heir, the 
procurator can hinwelf, by intermeddling with a rich inheritance 
make the Kmperor [ complete j heir* 

2 I'AUUW (8?nfo u HKM 5) But if the property in respect of 
which the Kmpcror IH appointed heir is inwnificient for the debts, 
then, when the fact IH ascertained, the cotfrae in to consult the 
Kmpcror ; ince when a qucHtion arisen a to entering on or declining 
smch inheritance*, it in the pernon appointed heir whoso wishes 
should be ascertained. 

3 (lALLWTlUTXrB (on jwticM inquiries 0) Imperial pro- 
curators* have not the power of deporting; thin is a punishment 
which they are not competent to inflict, L But if they should 
forbid any one acceHH to land belonging to the Kmpcror on the 
ground that IUK behaviour tended to a riot or wan otherwise a 
wrong to the imperial tenant**, the party IH bound to keep away ; 
thin in laid down in a rescript of the Divine PMH to Julius. 2. It 
may be added that the procurator in not able to give a man | who is 
deported) leave to return, and thin iw laid down in a rescript of the 
present Kinperorn Hevenw and Antoulmm written hi answer to an 
application by one liormiaa. 

* Hcutonco hopoIoBn, 

8 Kvftfi tftwuratow* for ctttwtow*. Of. M. 



TIT. xx] On the office of Juridicw 63 



XX. 

ON THE OFFICE OF Juridicus. 

1 ULPIANTTS (on Sdbinus 26) A man can execute an adoption 
in the court of the jwridwus, as the latter is allowed to take statute 
actions. 

2 THE SAME (ibid. 39) The jwridiew who holds office at 
Alexandria is allowed by an enactment of the Divine Marcus to 
appoint guardians. 



XXL 

ON THE OFFICE OF ONE TO WHOM JURISDICTION IS DELEGATED. 

1 PAPINIANUS (Questions 1) Wherever any powers are con- 
ferred specially by a statute or a decree of the senate or an 
imperial enactment, if the officer delegates his jurisdiction, such 
powers do not pass ; but powers which he possesses in right of his 
magisterial office can be delegated. Hence those magistrates are 
clearly in the wrong who having the power to hold a criminal trial 
conferred upon them By a statute or a decree of the senate, such 
as the lex Julia de adulteriis, or any other similar enactment, 
thereupon proceed to delegate their jurisdiction. A very strong 
argument in support of the above is the following : in the lex 
Julia de vi it is expressly provided that the judge on whom there 
fells the duty of holding the inquiry can delegate it if he goes 
away; so that he has a right of delegation only in case he should 
be absent, whereas in general jurisdiction can be delegated equally 
well by a magistrate who remains on the spot. Should the case to 
be tried be that of a man being murdered by his own slaves, the 
praetor will not be at liberty to delegate the power of holding a 
trial, deriving it as he does from a decree of the senate, 1. When 
a man has undertaken a jurisdiction which was given him by 
delegation he has no original powers of his own, he only exercises 
the jurisdiction of the officer who delegated. The better opinion 
is that according to long-established practice "jwri&dwtio " may be 
transferred, but the right of mere command (mMum imperiim) 
. which is given by a statute will not pass ; hence no one holds tha* 
the legate of the proconsul has the power of inflicting punishment 



64 On Jurisdiction Delegated [BOOK i 

when he takes the proconsul's jurisdiction by delegation. (Note 
by Paulus : the better opinion is that when jurisdictio is delegated 
the right of direct command which is bound up with jurisdictio 
passes too.) 

2 ULPIANUS (on all tlte Courts 3} Where theprcescs delegates 
his jurisdiction, the person to whom it is assigned cannot summon 
a board (ixmttilwm). L Where guardians and curators wish to 
sell land [in those respective capacities] the praetor or pr&ses can 
give peraiHsion on sufficient cause shown ; but if he delegates his 
jurisdiction, he can by no means thereby transfer the right of 
holding the requisite inquiry. 

3 JXTLTAKUK (Digwt 5} Mvcn where the person who carries on 
another man's jurimliction in himself a pnotor, still so long as he is 
discharging the office of the other, he is not acting in virtue of his 
own powers, but iw administering justice in the place of the officer 
by whoHC delegation lie Hits. 



4s MACKK (<m the <{ffiw of /*fww 1). The right of holding 
inquiry into the ewe of a guardian who in 'nuspectcd* can be 
delegated. Indeed it has been laid down by rescript, with a view 
to the benefit of ward*, that, where jurindietion is delegated in 
general tcrnm, tho above right is included ; the words are as 
follows: "The KmpurorH SeveniK and A,ntoninuB to Braduas, 
ProeouHul of Africa, AH you have handed over your own juris- 
diction to your legates, it follows that they can hold an inquiry 
into CJIHCH of guanliaiiM who are mu*pocte<l." 1. Delegation can be 
validly made of the power to grant txwmo bonorum, the power 
to make an order granting ponneHHion in cane an undertaking 
ugainHt dumMtm ht/wtnm Hhoul<I not be given to one who applied 
for it, to admit a woman into POHHCHSIOU on behalf of an unborn 
child, to admit a legatee into POHHCHHIOII for the purpose of pre- 
werving kwicicn, 

8 I'AtTUirt (/* Pltwtim 18; It M (jiute clear that [a man] to 
whom jurindictum in delegated cannot delegate it over to another. 
I, When jurisdiction IH delegated to a private pemm, the delegation 
i held to include im'iwriuM JIH well, Huch M doen not amount to 
iMntut iwfMriwtt ; tliere IB no nuch thing an jurisdiction not 
involving authority to inflict Howe Blight punishment 



TIT. xxn] On the office of Assessors 65 



XXII. 

ON THE OEOTOE OF ASSESSORS. 

1 PACJLUS (on the office of Assessors) The whole office of an 
assessor, one, it may be said, in which the skill of those learned 
in the law comes into play, is exercised in cases which are pretty 
much such as follow : judicial inquiries, motions, applications by 
libel, edicts, decrees, epistles. 

2 MARCLOTUS (on criminal trials 1) A freedman can be 
an assessor. As for persons under infcmia, there are no statutes 
forbidding them to act, but in my opinion they are not qualified to 
discharge the duty of assessor, and in fact there is said to be an 
imperial enactment to this effect. 

3 MACER (on the office of Presses 1) If some one province 
comes to be divided and the two parts are put under twoprcesides 
respectively, as we see in the cases of Germania and Mysia, a native 
of either part can be an assessor in the other, and he is not held 
to be acting in his own province. 

4 PAjmsriAOTS (Respowa 4) On the decease of an Imperial 
legate his attendants (comites) have a right to their pay for the 
rest of the period for Which the legate appointed them to serve, 
provided always that they do not act as attendants to any one else 
during the time. A different rule is applied where the legate made 
way for a successor before the regular termination of his office. 

5 PAULUS (Sentences 1) A member of a board 1 , while acting 
as assessor, is by no means at liberty to adjourn the matter into bis 
own audience chamber, but he is allowed to take it into the 
chamber of some one else. 

6 PAPINIANXTS (Responsa 1) Where a municipal curator sum- 
mons a board, a man of the same munitipium is not debarred from 
acting as assessor, as he is not in receipt of official pay. 

1 Read contttiario for consiliari. G M. 



M. J, 



SECOND BOOK 

I. 
ON JwrtMlirtio. 

1 ULVIANITK (ff?/fo* Ij The oflicc of ono who exercises juris- 
dint to IH most comprehensive ; he can grant (an order for] bononm 
POMMMO and put peivouH into posHCKKion, he can appoint guardians 
to children under age who have none, he can nominate a judge 
to parties in litigation* 

2 JAVOLKNUK (rtrurt* frtwi (J<miu& 0) When an officer is 
given jnriMlirtio, he in aluo clearly allowed thoe powers without 
which juriMlktio cannot take ita due eouim 

3 ULPIAKUH (on t/w ojfiw of Qwtfbvr %) Impwium iw either 
Biinple 'yiMrrw;;*) or mixed Simple mpwim* IK wliere an officer 
in in poKKeHwion of the power of the sword for the purpose of 
punishing* evildoerw; when it in alno called poteMas. Mixed im- 
twrimtti which in fact include** jim^dM^ in that which is evinced 
in grunting boMtnm pommio ; jwiMtivtio extend** to the power 
of nominating a ju<lgc. 

4 THK HAMK (on MM Bdfct 1) The ix>wer of ordering an under- 
biking to be given by a praetorian ntiptilation, and of putting 
pernotiK into poHHCHwion, belongn more to imperinm tlan to jwris- 
dirtio. 

6 JnUAMim (f)iyeM 1) By the cuntom of our forefathers it 
him been brought to pan* that an officer who can delegate his 
jwritd'ietio om only be one who pOHHCBHew it in MH own right and 
not by the gift of another; 

6 PAUUIB (<m ttw MdM a) becaune [in the latter^ case] ^the 
wotdd not be given him directly, and the jwrfodictw 
1 in hiHoroud after 



TIT. i] On jurisdictio 67 

which he has by delegation is not bestowed by the statute but 
only confirmed by it. Hence if an officer who delegated his juris- 
dictio dies before the person to whom it was delegated has begun 
to execute the matter in hand, then, according to Labeo, the 
delegation is annulled, in accordance with the rule in ordinary 
cases [of mandafom]. 

7 ULPIANUS (on the Edict 3) If any one should maliciously 
destroy a notice which is made in the [praetor's] albvm, or on 
paper \charta\ or any other substance, such notice being relative 
to the praetor's standing jurisdiction, and not dealing with a special 
occasion, an action is allowed against the offender for five hundred 
awrei, in which any one may sue (populare est}. 

1. The words of the Edict include slaves and sons under potestas, 
moreover the praetor refers to both sexes alike, 2. Should the 
damage be done while the notice is being put up, or before it has 
been put up, no doubt the words of the Edict will not apply, but, 
according to Pomponius, the principle of the Edict ought to be held 
to go far enough to include this case. 3. In the case of slaves, 
where their owners do not undertake their defence, and in that of 
persons destitute of means, bodily torture is to be used. 4. The 
words of the Edict include the term "maliciously " [dolo mdlo]; 
because, if any one should act in the way described through 
ignorance, or want of ^education, or by the praetor's own order, 
or by accident, he is not liable. 5. The Edict extends to the case 
of one who carries the written matter away, though he should not 
damage it ; and it applies equally whether the party commits the 
offence with his own hands or instigates another to commit it. 
If one man did the act without malice, but another induced him 
with malice, the one who induced will be liable ; if both act with 
malice, both will be liable; certainly, if several join in the act, 
whether they do damage or instigate to it, they will all be liable ; 

8 GAIXTS (on the provincial Edict 1) and it goes as far as 
this that it is not enough for one of the parties alone to pay 
the penalty. 

9 PAULUS (on the Edict 3) If a household of slaves should 
damage the album, the Edict does not deal with the case in the 
way in which it does with theft, by providing that if the owner, 
assuming that he chose to defend the action, pays on behalf of one 
df such slaves as aauch as the man wotjld pay himself if he wete 
free, then no action is to be allowed in respect of the others : the 
reason for this may be that, in the case we are considering/ the 

52 



68 On jurisdictio [BOOK n 

object is to redress a slight offered to the dignity of the praetorian 
office, and it is regarded as a case of wo many distinct acts; just as, 
when a number of slaves have committed an iryuria or have done 
damage to property, [the same rule is observed,] on the ground 
that there are several distinct acts, and not one only as in the case 
of theft. OctaveniiR says that the slave-owner ought equally to be 
relieved in the case under discussion; but this can only be said 
whore the slaves maliciously contrive that some one else shall destroy 
the album, as in that case there is one common plot, and not a num- 
ber of distinct acts. Pomponiiu* makes the same remark (lib. X.). 

10 Uijpi\KUH (on. the Kdict :*) The officer who presides at the 
administration of justice ought not to administer it for his own 
case nor for that of his wife or his children, nor for his freedmen 
or any others whom he has about him. 

11 GAIXTB (<ni the provincial ISdirt 1) If the same plaintiff 
bring* a number of actions against the same defendant, and the 
amount sued for in low enough in every separate case to bring 
it within the jurisdiction of the judge, but the aggregate amount 
of all token together exceeds the limits of bin jurisdiction, Habinus, 
Oassius and Proeulus hold that the action can be carried on before 
the judge in question, and thin opinion in confirmed by a rescript 
of the* Kmperor Antoninus, L Again, if tlipre are reciprocal rights 
of action between two partien, in respect of which one asks for 
a man below the limit, and the other for one above it, the one who 
asks for the smaller mm must proceed tafore the same judge, 
HO that it may not be in the power of my opponent, if he is 
disposed to act vexatiotmly, to nay whether 1 shall be allowed to 
argue my OUHC before the same judge or not* 2. If a single action 
5s brought in which a number of persons are plaintiffs at the 
name time, an, for itratauce, an action for dividing an inheritance 
(/amilm /wiwvf.wrfff'), for partition of common property (mmmuni 
divMuHtto), for settling boundaries (fatiwn, r<>ymdoruw,)~~Q\ig\it 
we, in order to determine the jurisdiction of the judge who takes 
the case, to consider the value of the separate shares, which is 
what Oftlius and Protsulus maintain, on the ground that each 
penton iw a party to fclw suit in virtue of his own particular share, 
or ought we rather to consider the value of the whole property, 
because the title to the whole is brought in question at the trial, 
and the whole may iH>ssibly l>e adjudged to one party? This last 
view IB held by Consuls and Pegasus, and there Js no doubt their 
opinion is reasonable. 



TIT. i] On jurisdictio 69 

12 ULPIANTJS (on the Edict 18) A municipal magistrate is not 
allowed to visit a slave with severe punishment, but he cannot 
be denied the right of inflicting moderate chastisement 

13 THE SAME (on Sabinus 51) The officer who orders any one 
to act as judex must be a magistrate. 1. Magistrates, or persons 
who are invested with any official authority, such as proconsuls, 
or praetors, or governors of provinces in general, cannot order a 
man to act as judge on a day by which they will themselves have 
returned to private life. 

14 THE SAME (on the Edict 39) It is established law and is 
in accordance with actual practice that where an officer of higher 
or equal rank submits to the jurisdiction of another, the juris- 
diction may be exercised either for or against him. 

15 THE SAME (on all the Courts 2) If parties by mistake go 
before one praetor, intending to go before another, the proceedings 
so far are void. No one can be allowed to say that the parties 
agreed upon the particular presses, since, as Julianus says, where 
persons are under a mistake there is no agreement: what indeed 
can be more inconsistent with agreement than a mistake which 
is a proof of ignorance? 

16 THE SAME (on all the Courts 3) It is the practice of the 
praetor to delegate his jurisdiction, and he either delegates it 
altogether, or with reference to a particular case; whereupon the 
person to whom the jurisdiction is delegated acts in the place of 
the officer delegating, and not in his own character. 

17 THE SAME (Opinions 1) Just as the praetor is able to delegate 
his entire jurisdiction to another, so he is able to delegate it with 
reference to particular persons or a particular case, especially 
where he has a sufficient reason in the fact that he himself under- 
took the advocacy of one of the parties before he was a magistrate. 

18 AFRICANTTS (Questions 7) If two parties should agree that 
some other praetor should exercise jurisdiction than the one to 
whom it regularly belongs, and, before application were made 
to the praetor agreed upon, there should be a change of mind, 
it is beyond doubt that no one could be compelled to abide by 
such an agreement 

19 ULPIANTTS (Jftdeie&toiwiswt 6) *A tmraarried woman? was 
defendant tx> an action wbJeft was 'Wfefcgh* before a judg# w&fr 
was. competent to hear -i^ and judgment was given against fret; 
after which she became thfr! wife. off k poan who was subject to a 



70 On jurisdictio [BOOK n 

different jurisdiction, awl the question arose whether the order 
of the original judge could be curried out. My answer was that 
it could, UH the order WUH already made ; but in fact 1 should hold 
the same if the marriage had taken place alter the hearing had 
begun, but before judgment was given ; wo that the decision would 
properly be given by the original judge. A similar rule ought 
to be observed in all cases of this kind. 1. Whenever a question 
arisen as to whether the amount which determines jurisdiction is 
reached or not, the point to inquire into always is how much 
is sued for, not what is the amount of the debt. 

;0 PAXJUIS >// /A*' Kifirt I ) An officer who exercises juris- 
diction outside, his lowtl limits may be disobeyed with impunity,, 
The same rule holds where he affects to exercise jurisdiction with 
reference to an amount beyond his competency. 



IL 

A MAN TO UK I>KA!T WITH AKTKK TIIK LIKK HULK TO THAT 
WHICH II K MAINTAINED AUAINBT ANOTHER* 

ULPIANUK (on t/w Ktlwl :i) Thin Edict IK one of perfect 
fairnoHH and can give no reasonable occasion of protest to any one: 
indeed, how can anybody complain of having the name law applied 
to his own case that he applied or caused to be applied to other 
people? I. "If a man who holds any magistracy or authority 
Hhould establish any now law to the prejudice of another, he must 
himself at any tiino thereafter, on the application of an opponent 
of his own, be dealt with in accordance with the name rule; again, 
if a man Hhould procure the application of any new law in the 
court of one holding HOIUO magistracy or 1 authority, judgment 
nuiftt at any time thereafter, on the application of his opponent, 
be given againwt him in accordance with Buch new law/' so that, 
in lihorii, whatever a man himself doomed to be junt in the case 
of another, he munt witter the name to be held good in his own 
caHO too. a. The words " whatever the officer who presides at the 
jurhdiotio OBtabliHheH '* are understood by reference to the result; 
we mut not confine ournelvcH to the wordw; consequently, if the 
officer (should winh to entablirth wmtething for law, but should be 
checked, and \m judgment Hhould not take effect, the Edict does 

* Iloati w for 



TTT. n] After the like rule etc. 71 

not apply. The word "statuit" (establishes) implies that the 
matter is completed, and the wrong is consummated, not merely 
begun. It follows that if a man exercises jurisdiction between 
parties between whom he is not competent to exercise it, then, 
seeing that the proceeding is treated as null and void, and there is 
in fact no decision at all, we must hold that the Edict does not 
apply ; how indeed could there be any harm done by the attempt, 
where the illegality produced no effect? 

PAULUS (on the Edict 3) By this Edict what has to be 
punished is malice in the person exercising jurisdiction ; if the 
law has been laid down otherwise than it ought, owing to au over- 
sight on the part of the assessor, the ill consequence ought to fall 
on the assessor himself, and not on the magistrate. 

ULPIANXTS (on the Edict 3) If a man has procured for 
himself the benefit of an unjust rule being applied to an opponent, 
he will be dealt with according to the same rule himself only 
where the thing was done on his own application ; if it was not 
on his application, he will suffer no penalty. But if he got the 
order, then, whether he put the rule in force or only obtained 
leave to put it in force without doing so, he will be punished 
under this Edict. 1. If it was my procurator who made the 
application, the question arises who it is that will be dealt with 
according to the same rule ; Pomponius holds that it is myself 
only, at any rate, if I specially instructed the procurator, or t subse- 
quently ratified what he did. But if a guardian or the curator 
of a lunatic or minor made the application, he is punished under 
the Edict himself. The same course must be followed with a 
procurator too, if he was made * procurator on his own behalf' 
2. The penalty is laid down against every one who comes within 
the terms of the Edict, on the application not only of the party 
who was injured by him, but of any person whatever who takes 
proceedings at any distance of time. 3. Suppose a person for 
whom you are surety obtains an order forbidding seine debtor 
of his to plead [a particular] exceptio against him, and, after that, 
you desire to plead [a similar] eoweptio in respect of your engage- 
ment as surety, neither you nor the principal debtor himself can 
get leave to do so ; even though in the meantime this should entail 
a wrong off you if yow debtor is iasolveat But if you yourself 
are hit by the Edict, the principal debtor can still plead tfoe 
&wtptio, but ytm'catffto^sa that -the penalty incurred by jroii 
[the surety] will not afecfc:the^rincipal debtor; accordingly you 



72 After the like rule etc. [BOOK n 

will have no right of action on mandatum against him. 4. If my 
sou in the exercise of a magistracy incurs the penalty of the Edict 
will the Edict apply in respect of such actions as I bring in his 
right ? My opinion in that it will not, or else my relation to him 
will put me in a worse legal position. 5. With regard to the 
pruetor's declaration that a person in the case mentioned is to 
bo dealt with "after the name rule," will the liability to this 
penalty pass to his heir an well? Julianas informs us that not 
only the person himself loses the right of action, but his heir does 
too. (J. lie adds this, which in not unreasonable, that he is 
exposed to the penalty in question not only in connexion with 
such rights of action an he hud at the time when lie brought 
himself within the terms of the i&liet, but in connexion also with 
siny that ho may acquire wubsequently. 7. The principle under 
discussion (so Julianus holds) will not allow money already paid 
to be recovered, us there was still ground for the payment in 
natural law, ami that fact bars the recovery. 

UAIIW <<ni the. jtrtwhwlttl Mlict 1) The pnetor makes one 
rather nico reservation, in these words: "save always where 
one of the above persons | against whom relief is promised] had 
acted to the prejudice of Home one who had himself done similar 
prejudice fco another.*' This reservation is perfectly sound, as 
otherwise a magistrate who seeks to uphold the Kclict, or a 
litigating party who desires to enjoy the benefit conferred by the 
Kdict, . might hinmelf incur the penalty which the very Jfidict 
imposes. 



III. 

A MAN RKKimHH OltKDIKNCK TO THK MAGISTRATE 



1 UftPlANOH (f* tlw Kdict \) All magistrates, save only 
duumvira, are allowed, hi accordance with the rights appertaining 
to their reHjwctivo authorities, to protect their administration of 
justice by mumm of poual wtmtentm 1. A man is held to refuse 
obedience to the magistrate exercising jurisdiction when he declines 
to comply with the final direction given in the course of the magisr 
tautc'H odmiiuKtratiou of the law ; for example, where he refuses* 
to allow movoable property to be made the Bubject of a viudloatiou 
him, but doe allow it to be driven or carried away L, it to 



oar. m] Where a man refuses obedience 73 

held that he obeys] 1 ; but, if he resists even these subsequent 
measures, then it is held that he does not obey. 2. If a procurator 
or guardian or curator refuses obedience to the officer exercising 
jurisdiction, the offender is himself punished, not the principal 
or the ward. 3. This Edict, so Labeo says, applies not only to 
a defendant who disobeys, but to a plaintiff as well. 4. The action 
is not for an amount representing the plaintiff's interest in the 
matter, but is confined to the direct loss ; and, as it provides a 
penalty simply, it is not allowed to be brought after a year nor 
against the heir of the wrongdoer. 



IV. 

Oar CITATION-. 

1 PAULUS (on the 9 Edict 4) To cite a person to appear 
is to cite him for the purpose of a trial at law. 

2 ULPIANUS (on the Edict 5) No citation can be made of 
a consul or a prefect or a prs9tor or a proconsul or any other 
magistrate who possesses imperium, and who consequently can 
exercise coercive powers and order persons to be put in prison; 
nor of a pontifex white he is performing sacred rites, nor of such 
as cannot stir from the spot where they are, because of the 
religious character attached to the place, nor, again, of one who 
is riding on his way in the service of the government on a horse 
which fe state property. Furthermore a man must not be sum- 
moned who is in the act of being married, nor a woman in the like 
case; nor a judge who is at the moment hearing a ease; nor a man 
who is pleading before the praetor ; nor one who is conducting the 
funeral of a member of his own household, or is performing due 
rites to the dead; 

3 OALLISTRATTTS (judicial inquiries 1) nor persons who are 
attending a funeral ; and this rule we find is confirmed by a 
rescript of the Divine Brothers : 

4 UiiPiANtrs (on the Edict 5) nor any one who is compelled 
to appear in court or in some particular place in order to take part 
to a trial; nor lunatics nor infent chiHreaou 1. The praetor says 
"No one is to cite to appear without my permission a parenC, 
a patron or patroness, or 'the children or parents of a patron or 

M. 



76 On Citation [BOOK n 

cite any individual member of the corporate body; as he is 
no freednian of the individuate. But he is bound to treat the 
municipality (res pttblinn) with deference, and if he desires to go 
to law with a municipality or a corporation, he must apply for 
permission under the Kdict, though he should intend to cite 
one who is appointed agent for the body [actor], 5. The terms 
"children" and "parents" of the patron and patroness we must 
regard an including both sexes. 0. If the patron is reduced to 
peregrine condition by a sentence of deportation, then, in the 
opinion of Pomponius, he loses his privilege. But if he should 
be reinstated he will recover the full benefit of thin Edict as well. 
7. The expression u parents of the patron" confers the exemption 
even on adoptive parents ; but only so long as the adoptive 
relation hist*. 8. If my son is given in adoption, he cannot be 
cited by my freedman ; neither can my grandson, where he 
wis born into the adoptive family* But if my son, after 
emancipation, adopts a son, such a grandson can be cited 
[by my freedmun | as he in a stranger to me* 0. The word liberi 
(children), according to Oiwius, is applied in a way corresponding 
to the use of the word parent, that is, oven beyond a descendant 
in the fifth degree* 10. If a freedwoman has a child by her 
patron, she and her son arc forbidden to cite each other, 
1 1. But if the children of a patron should have brought a capital 
acciiHatiou against their father's freedman, or have taken proceed- 
ings to have him judicially pronounced a slave, no honour need 
be shown them. 12* The pnetor Hays: " No one is to cite 
without my permission/' etc. He will give permission if the action 
brought against u patron or a parent is not one which involves 
infamy or which wounds his honour. But in every case he ought 
to not on cause shown; its in some e;ises, in the opinion of Podius, 
he ought to allow a patron to be cited by his freedman, even 
where the action involves infamy, where, for instance, he has 
done the frecdwan some? outrageous wrong, say, he scourged him. 
18, The honour in question in always to be paid to the patron, 
even though ho in concerned as a guardian, or curator, or voluntary 
defendant on behalf of another (<t(>/<>Mor), or as an agent (actor), 
But where a guardian or curator of the patron is concerned, 
Huch a person can be cited with impunity, according to Pomponius, 
and this in the better opinion* 

L PAUUTH (m tlw Kdirt, 4) Although the pnotor does not 
proceed to nay that ho will allow penal proceeding** [only] on 
flufflcient cause shown, still, according to I^abeo, his jurisdiction 



TIT. iv] On Citation 77 

must be exercised subject to some limitation; suppose, for example, 
the freedman should think better of his intention and abandon the 
action, or the patron, although cited, should not appear, or he 
should have no objection to being cited ; although the language of 
the Edict does not admit the above construction. 

12 ULPIANUS (on the Edict 57) If a freedman should, in 
contravention of the prsator's Edict, cite a son of his patron 
whom that patron has under his potestas ; the proper view to take 
is that, in the absence of the father, the son under potestas ought 
to get relief, and he has a good penal action in factwn, against 
the freedman ; viz. one for fifty atwrei. 

13 MODESTENUS (Pandects 10) The general rule is that those 
persons to whom deference ought to be shown cannot be cited 
without the leave of the praetor. 

14 PAPINIANTTS (Response 1) Where a freedman is put on his 
trial by his patron, and, with a view to his defence, makes a 
number of applications to the presses of the province in his 
court, he is not held to be thereby citing the patron who accuses 
him. 

15 PATJLITS (Questions 1) A freedman presented a petition to 
the Emperor against his patron in which he did not conceal the 
fact that he was his freedman; assuming that he obtains a rescript 
such as he prays, is it held to follow that the penalty due under 
the Edict is remitted? My answer was this : I do not think that 
the praetor's Edict applies to such a case; a man who presents 
a petition to the Emperor or the prases is not held to be citing 
his patron. 

16 THE SAME (Responsa 2) The question was asked whether 
a guardian could cite his own patroness without the leave 
of the prcetor, when acting on behalf of his ward. I answered 
that the person in question, while acting on behalf of his ward, 
might go so far as to cite his own patroness without the leave 
of the praetor. 

17 THE SAME (Sentences 1) Where a man has given an under- 
taking at the magistrate's office that he will produce any one, 
he is compellable to do so. Moreover a man who has promised 
by enrolled assurance that he will produce any one, even though 
he give no undertaking at the office, is still compelled to pro- 
duce him 1 . 

1 This is clearly the meaning intended ; the wording is uncertain. 



78 On, Citation [BOOK n 

18 GAJTTS (on the Twelve TaWs 1) Most writers hold that 
it is not lawful to cite any person from his own house ; a man's 
house, they say, being life most secure shelter and retreat, so 
that any one who should cite him out of it must be held to be 
using violence ; 

19 PAUIAJS (on the Edict 1 \ and, if such person is undefended 
and he keeps out of the way, it IB clear that he suffers quite 
sufficient penalty by the fact that the other party is put in 
pOHHChsion of him property. But if he makes himself accessible 
or ho can be neeii from any public place, then, according to 
JulianiiH, he can be properly cited. 

50 GAIHK <<m the TVWw Tithk* I) There is no doubt that 
a man can lawfully be cited from IUH housedoor, or the baths, 
or the theatre. 

!1 I*AULUH (<*H> the. Kdwk 1 ) HUH, though a man who is in his 
house can HomeiimoH be cited, no one ought to be dragged out of 
MM own dwdlinghouHe. 

J2 (JAitrs (the. Ttwlw Tttblr* 1) Again, one is not allowed to 
cite a girl under the ago of puberty, who IK subject to Home 
one elwt'H jMtwtiw. I. Where a man in cited, two cases may 
occur in which h must be excused from attending ; one where 
Home one undertaken hin <iefenee in his *place, and the other 
where, before they have come into Court, the parties agree to 
cowprowiHc the matter. 

53 AlARorANUH (Iwtinitunw .'*; When a man in freedman to 
nevenil patron* in common, lie in ntill bound to ask the pnctor 
for leave to c*ito any one of Hiich patrotw in particular, or eke he 
will incur the penalty preneribed by the Edict 

54 UUUANUK m * Kdidt ) If any one contravenes the 
above regulation^ an action in allowed againnt him for fifty aurei ; 
but thin will not be given to the heir [of the patron], nor against 
the heir [of the froedman |, nor after the lap*c of a year, 

J5 WOIMRWTINUH (on jwnaltk* 1) if a freedman should cite 
a patron without getting penniHHion under the Kdict, then, on 
complaint made by the patron, he either haw to pay the above- 
mentioned penalty, vi& fifty cwra, or elwe he is chartteed by order 
of the prefect of the city m failing in respect, that is, if he is 
ascertained to be devoid of meaim. 



TTT. v] Where one who is cited fails to (Appear 79- 

V. 
WHERE ONE WHO is CITJED FAILS TO APPEAB ; ALSO WHERE 

A MAN CITES ONE WHOM, ACCORDING TO THE EDICT, HE 
HAS NO RIGHT TO CITE. 

1 ULPIANUS (on the Edict 1) Where any one who is cited 
offers as a surety for his appearance at the trial a person 
who is not subject to the jurisdiction of the judge before whom 
he is himself cited, such a surety is not regarded as offered at all, 
unless he expressly renounces his privilege. 

2 PAULUS (on the Edict 1) A man who is cited on 
whatever ground before the praetor, or any other officer who 
presides at the administration of justice, is bound to attend for 
the purpose of having the very point ascertained whether the 
officer in question really has the jurisdiction or not. 1. Where 
one who is cited declines to attend, he will be ordered by 
the proper judge to pay such fine as it comes within the juris- 
diction of that judge to impose ; but on sufficient cause shown, 
as allowance must be made for the man's want of education; 
moreover if the plaintiff has no interest in the other party appear- 
ing at that precise time, the praetor remits the penalty ; for instance 
on the ground that the day was a holiday (dies feriatus). 

3 ULPIANUS (on Sdbinus 47) Where a man promises to appear 
at a trial, but does not go on to name a penalty which he will pay 
in case of non-appearance, the clear rule is that an action can 
be brought for unliquidated damages to an amount equivalent to 
the plaintiff's interest ; and so says Celsus himself. 



PERSONS CITED BOUND TO APPEAR OB ELSE OIVE A 
GUARANTEE OB AN UNDERTAKING. 

PAULUS (on the Edict 1) It is provided by the Edict that, 
when a surety is offered that a person will appear in answer to a 
summons, the surety so offered must be of sufficient means, regard 
being had to the station of the defendant, except where the surety 
is a near connexion of the defendant, in which case any kintf of 
surety must be accepted ; suppose, for example, a man is offered 
as surety for his parent or patron, 



80 Persons cited bound to appear [BOOK n 

2 CALLISTKATUS (mi the monitor)/ Edict 1) or, again, for his 
patroness, or his own children, or his wife or his daughter-in-law 
lu these cases any kind of surety has to be accepted 1 , and where 
the plaintiff refuses to accept a surety, knowing that it is a case of 
a close connexion such as above mentioned, there is a good right 
of action for fifty aitref, 

3 PAUUTS (OM the, Edict 4) since in the case of persons closely 
connected any surety is deemed and taken to be of sufficient means, 

4 ULPIANUH (on tlw Ediet 88; Where a man has promised 
that two particular men should appear at the trial, and thereupon 
he produces one but not the other, he cannot be held to procure 
them to appear in fulfilment of his promise, seeing that one of the 
two wan not produced. 



VU. 

Xo ONM TO UBIiWAHK BY W>Jt<?JH A MAN WHO IS CITED. 



(on the Kflfat 5) The priotor published this 
Kdiet in order that he might keep in check by fear of punishment 
Huoh as forcibly release persons who are cited. L Indeed we 
read in PowiponiuH that where the offender is a slave, a noxal 
action must bo given, unless the nlavo did the act with hi owner's 
knowledge ; in that ease hw owner inuHt Hubmit to the action, 
without l>emg allowed the alternative of surrender for noxa. 
& OfilhiM hoick* that thin Kdict will not apply where a pcrwon has 
IKHMI releawed who wan never legally liable to be cited, for 
instance, a parent, or a patron, or one of the other persons men- 
tioned ; and this neemn to me the; sounder opinion. Certainly 
where it wan u wrong to cite the party it was no wrong to 
him* 



PAUMTH (mi tlw Kdict 4) Both, no <loubt, contravene the 
the frotuhnan who oiten hin patrons, an<l the other party 
w!u> forcibly rcloaMtw him ; but the frcedman in in the worse 
poHtUon, if lie nctn the part of plaintiff whore hiw own wrong is just 
an great The Hume equitable eonnideration applicH in the case of 
one who wan eited to a place to which ho wan not liable to 
l>o cited ; but here the obnervation may be made more strongly 
Htill that a man who han a right to decline to be sued at that 

o, cannot bo alleged to bo released with violence, 
1 qufriit invor(*ii<l after ttwipitttr. M. 



TIT. vn] No one to. release by force etc. 81 

3 ULPIANUS (on the Edict 5) Where a man sets free a slave 
who was cited, Pectins holds that the Edict does not apply, 
because the slave was not a person who could legally be cited 
That being the case, it comes to this ; there will have to be an 
action for production. 1, If a man should set free some one 
who is cited before a subordinate judge (judex pedaneus), the 
penalty mentioned in the Edict will not be incurred. 2. With 
regard to the rule laid down by the praetor in the words "release 
with violence" (ttf), does it apply where simple force is used, or 
must there be malice (dolus mains) as well ? Release by force is 
enough, though there should be no malice. 

4 PAULTJS (on the Edict 4) The word 'eximere' (release), 
so Pomponius says, is a comprehensive term- 'Eripere' means to 
take out of a man's hands by actual seizure ; 'eximere' is to set 
free in any way whatever. Suppose for instance one should 
not positively seize a man, but contrive some hindrance in order 
to prevent him from coming to the magistrate's court, so as to 
cause the regular time for bringing the action to expire, or the 
property at stake to be lost by lapse of time ; the party would be 
held to have released the person in question, though there should 
be no physical release. Similarly if any one, without taking a man 
away, detains him where he is, he is liable under the same words. 

1. If a man releases* some one who is cited on a vexatious 
pretence, there is no doubt that he is liable under the Edict. 

2. The praetor says "and he is not to contrive maliciously to 
procure him to be released/ 1 Of course it is possible that the thing 
should be done otherwise than maliciously, for instance, whea 
there is good ground in law for a release. 

5 ULPIANUS (on the Edict 5) If a man releases some one 
through the agency of a third person, he comes under these words, 
whether he is himself present or absent L Where a man effects, 
a forcible release, an action in factum is allowed against him, in 
which the measure of damages is not the actual amount of loss 
suffered, but the value set by the plaintiff on the subject-matter of 
the [original] litigation. This rule is expressly added to make 'it 
clear that where a plaintiff has brought a vexatious action, still he 
can recover the damages referred to. 2. He must however show 
that the result of the release was that the defendant was not 
brought before the court. If he really was brought after all, there 
is no penalty, the words only apply where the act made a real 
difference, 3. The action is in factum, and, if there are more, 

M. j. 6 



82 No one to release by force etc. [BOOK n 

offenders than one, each may be sued separately, moreover the 
party released remains still an much liable as before, 4. Heirs 
have a right to bring this action only where they have an interest 
in doing so ; but no action is allowed against an heir, nor after the 
lapse of a year. 

THE SAME (OM the Edict, 35J Where a man who has 
released a defendant debtor by force pays the damages, this does 
not extinguish the debtor's liability, as the party simply pays 
damugeH for his own act 



VIII 
WHAT PHKHONH HBHPKOTIVBLY AKE COMPELLED TO GIVE A 

GITAJIANTKK OK PKOMIKK ON OATH OH ARE EEMITTED TO 
A K1MPLK PHOMISK. 



UAIUH (tm M/i prtwhwiiil Kdict 5) The term xatisdatio 
giving a guarantee or security) arose In the name way as Mtiixfcustto. 
Just UH people are nai<I to give witihfaction to one with whose wish 
they comply, HO they are said to make "natindation" to the opposite 
party when they give him mioh Hoourily 1 in rcnpect of the subject- 
matter of law Huit thai by furniHhing Hureiiew they relieve him from 
all risk involved in it* 

HUMAN im <V>H tlw Kdivt f>) A wurety who IH given for the 
appearance of a defendant in regarded UK subntontial not merely 
by reference to Inn mcatix, but by reference also to the facilities 
there may bo for nuing him* . L If a man should give a surety for 
bin appearance to a unit brought by any one of the elans of persons 
legally incapable of bringing it, thin giving of a wurety is of no 
force* & The | traitor nayn, fc< lf any one citen his parent, 
IUH patron or patronesn, the children or parontn of hiw patron or 
patronwH, or hin own children, or womo one whom he has under 
hw jwtentMt or Inn wife, or IUH < laugh tor-in-Iaw, any kind of surety 
for the appearance of the defendant is to be accepted." 3. Where 
the pnotor nayw **or hin own children," we rnunt understand this 
to include grandeluldren <lcHcended through women: and we 
muwt allow the privilege In question in the C4itto of parentn not only 
where they are mi jiiri*> but e<iually where they are under any 
iwan'n potwfa* ; thiH in in fact Haid by Pouiponiua Moreover a son 
cau become a Htirety for liin father, even where he IH under some one 
J lload <?**//* , t MM$tur for yui..M6it. M. 



TIT. vm] What persons compelled to give a guarantee 83 

else's potestas. Daughter-in-law we must take to include grand- 
daughter-in-law, and so on in remoter generations. 4 Where the 
praetor says *' any kind of surety is to be accepted," this refers to 
the surety's means, it signifies, in short, even if the surety is not 
substantial. 5. Where the praetor allows an action against a surety 
who promised that some one should appear, it is given for such 
amount as the matter is worth ; but as for whether that means the 
actual loss in fact incurred, or a definite amount [an vero quanti- 
tatem] settled beforehand, this is a point to consider. The better 
opinion is that the surety is liable for the actual amount [in veram 
quantitatem], unless he became surety for a specific sum 1 . 

3 GAIUS (on the provincial Edict 1) Whether the action was 
for double or treble or fourfold damages, it is held that one aud the 
same surety is liable for whatever the amount was, without further 
discrimination, as that is the amount which the matter is taken to 
be worth. 

4 PAULUS (on the Edict 4) If a defendant who has furnished 
a surety for his appearance should die, the praetor ought not to 
order him to be produced 8 . Should the praetor order him to be 
produced, in ignorance of his death, or should the defendant die 
after the order is made, but before the day on which he was to be 
produced, no action can be allowed. Should the party on the other 
hand die or lose his citizenship after the day on which he was to 
be produced, an action may be brought with good effect. 

5 GAITJS (on the provincial Edict 1) But if a man is surety 
for one against whom judgment has already been given, and the 
latter, being in that position, dies, or loses Roman citizenship, this 
will not prevent an action being properly brought against the 
surety. 1. Where a plaintiff declines to accept some surety offered 
for the appearance of the other party, though he is beyond all 
doubt a substantial person, having regard to the condition of the 
defendant, or, if there was any doubt, is shown to, be such, an 
action for irtfwria can be brought against him, as it is certainly no 
every day wyuria that a man who offers a thoroughly sufficient 
surety should be brought up summarily in person. Indeed the 
surety himself whom the party declined to accept may take pro- 
ceedings as for an ityuria done to himself* 

6 PAUWTS (on the Edict 12) If ia wy case there is some flaw 
in the undertaking or the guarantee girea, it is held that there is 
no undertaking at alL . 

1 The passage must be comptt , a Kwd'toMtart for whiten Qt M. . 

62 



84 What persons compelled to give a guarantee [BOOK n 

7 ULPIANUS (on ffw Edict 14) If, without the sufficiency of 
the Hurety being denied, it should be alleged that he has a right 
to object to the jurisdiction, and the plaintiff should be apprehensive 
that he will raise a plea founded on the alleged right, let us see 
how the law stands. As to this point, so we are informed by 
Pomponius in his book of Kpistles, by Marcellus (Dig. 3) and by 
Papinianus (Questions 3) the Divine Pius laid down, in a rescript 
addressed to Cornel! OK Proculus, that a plaintiff was quite justified 
in refusing to accept such a surety, but that, if no other surety can 
be procured, the one who is offered must make a declaration that, 
if he is sued, he will not avail himself of las privilege. 1. Where 
the finding of a surety fa obligatory, but the defendant has a 
difficulty in finding one on the spot where he is sued ; then, if he 
offer to find one in some other city of the same pi*ovince, his 
proposal may be entertained. But where the defendant offers 
a surety without being obliged to do so, he in not allowed to change 
the place ; a man has no claim to consideration of thin kind where 
be of his own choice put himself tinder the necessity of finding 
a surety. 2. If guarantee for appearance haw not yet been 
furnished, whore the trial relate** to Home moveable, and the person 
who IK required to find a nurcty IB not thought trustworthy, the 
property should be deposited at the Office [Ojfic,iwn\, if that is 
agreeable to the judge, until either a surety is found or else the 
CIIHC in concluded, 

8 PAULUH (on ttw Ediet, 1 4) Commonly the parties to the action 
**#ree M to the mention of a day in the stipulation. In default of 
Mich agreement, Pedius holds that the promisee may choose the 
day, subject to some limitation as to the time ; this point is to be 
decided *by the judge. 1. A man who offers a woman as a person 
to guarantee his appearance, is not held to find a surety at all ; 
indeed, soldier* and persons under twenty-five are not ^to be 
approved of, except where such persons are sureties in their own 
tohulf, a for example, where they are sureties for their own 
agents. Home indeed hold that where an action is brought to 
recover dotal land by a husband, the wife may be surety in her 
own behalf, & If a person who before issue was joined was surety 
that the judgment would be complied with [judicatwm solvi] is 
found to bo a slave, the plaintiff hat* a claim to relief, and a fresh 
undertaking must be made. Relief must also be given to one 
under twenty-five, and perhaps to a woman, on the ground of 
inexperience. 3, If one who IH nurety that the judgment will be 



TIT. vm] What persona compelled to give a guarantee 85 

complied with becomes heir to the person to whom the assurance 
was given, or vice versd, fresh assurance will have to be given. 
4. A guardian or curator, when he has to undertake that property 
shall be preserved for the ward, may have an order that he shall 
come to the municipal town, because the guarantee is compulsory; 
the same rule holds as to a guarantee for a man giving up to the 
bare proprietor property in which a usufruct has been created ; 
and a legatee is in the same position with reference to bis giving 
security that, if the inheritance should be recovered by action 
[from the present assumed heir], he will give up any legacy paid 
him, including anything which, having regard to the lew Fcdcidia, 
was paid in excess ; moreover, an heir has a right to be heard on 
an application to be sent to the municipal town for the purpose of 
giving security for payment of legacies. It is true that if a legatee 
has once been put in possession of the property bequeathed him 
in a case where it was the heir's own fault that he omitted to find 
a surety, and the heir thereupon requests that the legatee may 
give up possession, and declares that he is ready to find a surety in 
the municipal town, he will not be entitled to permission to do sa 
But it is a different case where the legatee is put in possession 
through no negligence or wilful misconduct of the heir. 5. A man 
[who desires to give security in the mwnicipium] is ordered to 
deny on oath any vexatious intention, for fear lest he should really 
be seeking to annoy his opponent, and should have had that main 
object in calling upon him to come to the munwipium, when 
perhaps he is able to find a surety in Borne ; still some persons 
are excused the oath referred to in disavowal of vexatious intention ; 
for instance, parents and patrons. A man who gets the order 
authorizing him to go to a munidpium is bound to swear as 
follows ; that he is unable to find a surety in Borne, but that he 
can find one at the place to which he requests to be sent, and that 
he does not make the application with any vexatious intent But 
he is not compellable to swear as follows : that he cannot find 
a surety in any other place than the one named : because if, 
though unable to give security in Borne, he is able to give it in any 
one of several other places, this would amount to compelling him 
to commit perjury. 6. Hie leave in question will only be obtained 
where there is shown to be lawful cause. Suppose, for instance 
the defendant was in the mwwdpivm on a previous occasion, and 
then refused to find any surety; fa such a case the permission 
ought not to be given him, as it wets Uis town fault that he did not 
find a surety at the place to i?hfeh he now desires to go. 



86 What persons compelled to give a guarantee [BOOK n 

9 GAITO (on the provincial Edict 5) Where au arbitrator is 
appointed to try the sufficiency of proposed sureties, if his decision 
appears unjust, relatively to either party, there is an appeal allowed 
from him, just as there is from a regular judge. 

10 PAXJLUS (on the Edict 7b) 1 If sureties are approved of by 
the arbitrator, they are to be deemed substantial persons ; seeing 
that a complaint may be made before the proper judge , who can 
on sufficient cause shown, reject sureties approved by the arbitrator, 
or, it may be, approve those rejected. 1. Much more may we say 
that, where a man of his own freewill accepted sureties that were 
offered him, he is bound to be content with them. If, however, in 
the meantime Home notable calamity should overtake the sureties, 
or, nay, severe loss of means, then, on sufficient cause shown, 
sureties must be found over again. 

11 Uu'UN (OH. the Edivt 76) Julianus has the following: 
having no mandate us yet from me to bring an action to recover 
land, you still intend to bring the action, and you accordingly take 
the requisite guarantee, after which 1 give you the mandate and 
you institute proceedings in pursuance of it ; in this case the 
sureties are bound* 

12 TIIM KAMKfrm //> Kdfot 77) All writers are agreed that 
whore a man is appointed heir on condition, then, if he is in 
possession of the inheritance while the condition is pending, he 
must give an undertaking to the substitutional heir to hand over 
the inheritance, after which, if the condition fails, the substitute, 
assuming that ho chooses to miter UK heir, can bring the liereditatis 
7/ti/dl/tt, and, if he succeeds therein, the undertaking can be sued 
on. Very often indeed the prmtor himself, before the condition 
comes to puss, and before tlus time has arrived for the hereditatis 
jH'titlui will, on due* cause shown, order the stipulation to be made. 

13 PAUUJH (on tlw Kdict 7&) And if there are several substi- 
tutes, an undertaking nutnl be given to each separately. 

14 Tlitt HAMW (KiwiHrtWtt* $) A Hon under potwtas undertakes 
tluj defence of hw father, who in absent : I wish to know whether 
ho in bound to give security by sureties that the judgment will be 
olKsytxL PauIuH replied thut any one who undertaken to defend an 
action on behalf of an absent penton, even 5f he iw a non or a fether, 
in bound) according to the tcnnn of the Edict, to give such security 
to the perHon who IK bringing it 

1 On diviaitm of nectionK at i\m p^int cf. M. 



TIT. vra] What persons compelled to give a guarantee 87 

15 MACEB (on appeals 1) It must be borne in mind that 
defendants in possession of immoveable property are not com- 
pellable to find sureties. 1. By possessor is to be understood 
a person who possesses land in the country or a town, whether 
solely or in respect of a share. We may add that a man 
is considered possessor just as much when he has an ager 
vectigalis, that is, an emphyteutic estate. Furthermore, a man 
must be regarded as possessor when he has the bare owner- 
ship. But where he has only the usufruct, we have Ulpian's 
authority that he is not possessor. 2. A creditor who has taken 
a thing in pledge is not ' possessor/ although he should have got 
possession, whether the thing has been delivered to him or he has 
allowed it to be held on pr&Mriwm by the debtor. 3. If land is 
given by way of dos, both husband and wife are, in regard of their 
actual possession of such land, considered possessors. 4. A man 
who has a right of action in personam for the delivery of land 
is in a different legal position. 5. Guardians are treated like 
possessors, whether their wards are in possession or they are so 
themselves ; indeed, the construction is the same even where only 
one of the guardians is in possession. 6. If you bring an action 
against me to recover land which I possess, and judgment being 
given in your favour, I thereupon appeal, am I still possessor of 
the land? The proper view to hold is that I am possessor, as 
I have still got possession ; and it makes no difference that my 
possession can be taken away from me by course of law. 7- When 
the question arises whether a man is possessor, the time to be 
considered [for the present purpose] is that at which the under- 
taking is given ; for just as a man who sells the possession after 
giving the undertaking is in no worse position, so one who takes 
possession after giving it is in no better position. 

16 PAULUS (on the Edict 6) Where a man promises on oath 
to appear at the trial, he is not held to commit pequry if he fails 
to appear on some recognized ground. 



88 Nature of the undertaking given [BOOK n 



IX. 

NATURE OF THE UNDERTAKING GIVEN IN THE CASE OF 
A NOXAL ACTION. 



(on the Edict 7) If a man has promised that 
Home slave who is the subject of a noxal action shall be produced 
at the trial, he must, HO the pnetor ways, be ready to produce 1 
him in the name legal plight [w] in which he is at the time 
while joinder of issue is still pending. 1. What is meant by the 
expression "the name legal plight 19 in a point to consider; but 
the true view, I should suy, is that a man must be held to present 
the slave in the same plight where he does not put the plaintiff 
in a worse legal position with reference to the action which he 
brings* Hhould the slave in the meantime cease to be the pro- 
minor's property, or the plaintiffs right of action be lost, then, 
according to Lalw fc o, the slave cannot bo held to be presented in 
the same I<giil plight ; the same may be said where a plaintiff who 
was in us good a position (an the defendant) for purposes of litiga- 
tion comes to be in a worse position by some change of place or 
of party- Thus where the slave is sold to Homo one who cannot 
be sued in the namo court as the promisoi\could, or is transferred 
to a man who is a more formidable antagonist, the same authority 
considers on she whole that he cannot l>e said to be produced in 
court in the name legal plight Again, if the slave should in the 
meantime i>e surrendered for MMM, Ofilhis holds that he cannot 
be produced in the name plight, an, in his opinion, surrender 
for -mmtt, does away with all aoxal actions on the part of other 
persona, 

PAUIAJB (on tlw Ktltct 6) However, the present practice is 
different ; when u slave IH surrendered for no&a he is not dis- 
charged from all antecedent legal predicaments ; in fact nowa still 
followH the guilty subject junt as much OH if he had been sold. 
1. If Home one IH in a position to bring a noxal action in respect 
of a slave, and the nlavo in absent, then, according to Vindius, if 
the owner doen not deny that the slave is under his control, he 
can bo compelled either to promise that he shall be produced in 
court, or to join IHHUC, or else, if he does not choose to undertake 
the defence, he muat give an undertaking that he will produce the 
wlave as oon an he in able; but, if he denies falsely that he is 

M. 



. ix] in the case of a noxal action 89 

under his control, he must take up the case without the alternative 
of surrender for noxa. Julianus says the same, even where the 
owner contrives fraudulently that the slave shall not be under his 
control But, if the slave is present and the owner is absent, and 
nobody defends the slave, the prs&tor will order that the plaintiff 
may carry the slave off; at the same time the owner will be 
allowed, on cause shown, to defend the case afterwards, so 
Pomponius and Vindius say, so as to prevent him from losing 
by his absence ; consequently the plaintiff himself can get an 
order giving him back his right of action, which he was deprived 
of by the fact that when the slave was taken off he became his 
(the plaintiff's) property. 

3 ULPIANUS (on the Edict 7) If a noxal action is brought 
against one who has a usufruct in a slave and he declines to 
defend him, the prsetor will not allow an action at law on his part 
to recover the usufruct 

4 GAITTS (on the provincial Edict 6) If a noxal action is 
brought against one of two co-owners, is the defendant bound 
to find a surety in respect of the share of his fellow owner? 
Sabinus says he is not, because, being obliged to take up the 
defence for the whole claim, he is in a way defending the entire 
man as if he were his own property, and he will not be listened to 
if he offers to defend in respect of a share only. 

6 ULPIAKITS (on 8abmw 47) A man promises to produce 
a slave in court in the same plight, but the slave gets his liberty 
and then appears ; here, if the question to be tried concerns this 
particular man in connexion with capital proceedings or on the 
ground of injuria which he is charged with committing, this is 
not a good appearance ; as tone kind of penalty is applied with 
a freeman by imposition of, it may be, pecuniary damages, and 
another is used with a slave by inflicting severe punishment, and, 
in the case of injuria, the slave is beaten by way of satisfaction f 1 . 
But, so far as other grounds of noxal proceedings are concerned, 
the former slave may in fact be held to have got into a better 
plight [for the plaintiff]. 

6 PAtlitTS (on Sabinus 11) However, if a promise was given 
that a statu liber should appear, he is held to appear in the 
same plight though he should be & free man when he appears, 
as the chance of liberty was an element in his legal position 
originally. 

1 Transpose, *fwa*~*a#t#& and liforo...pecwmaria. 



90 On one who contrives [BOOK n 



X. 

ON ONE WHO CONTBIVBS THAT A DEFENDANT SHALL NOT 

APPEAR. 

1 ULHAKCJS (OH the Edict 7) The praetor held it to be 
thoroughly just to put a check on the ill practice (dolus) of such 
us take measures to prevent a man from appearing to a trial. 
1. A man is held to have acted with malice [<lolm mains], not 
only where he kept the defendant back with his own hands or by 
the instrumentality of persons in his service, but also where he 
engaged others to keep him buck or get him out of the way so 
that he should not appear, whether such persons were aware 
or not of his design. 2. According to the meaning put ou the 
expression ' tlolw* inning if any one should address words of evil 
omen to some one who is on his way to the court which should 
oblige him to give up going to the trial, the party would be liable 
under this Hdiet : though indeed some hold that the other would 
have himself to blame for l>eing so easily imposed on. & If the 
defendant fails to appear, owing to the contrivance (dolns) of the 
plaintiff, such defendant will not have any right of action against 
the plaintiff 1 in virtue of this Edict, us he maj' well be content with 
an ramyrfw, supposing he should, in consequence of not appearing 
at the trial, be sued for the penalty on his formal undertaking to 
appear. The cane is different if he should be hindered by some 
third person ; then he would have a right to bring the action in 
question. <1. If several are guilty of contrivance, all are liable ; 
but if one of them pays the penalty, the rest are discharged, as 
the plaintiff has no further interest. 5. All are agreed that in 
such a Ciise a noxal action must be brought in respect of a slave. 
0, The action in allowed equally to the heir of the party wronged, 
though only for a year : but against the heir of the wrongdoer 
1 tthould nay an action will only IMS so far allowed as to prevent 
mch heir front making any gain through the contrivance of the 
deceased, 

2 PAtrurB (on tlw Kdirt 6} If a slave of the plaintiff, with 
the knowledge of his owner, and without such owner attempting 
to prevent him, though able to do so, should awe contrivance so, as 
to prevent me from apiwaring to the action, then, according to 
OftliuM, I shall hare a right of twieptto to an action by the owner, 
let the latter should profit by the ill contrivance of bis slave. 



TIT. x] that a defendant shall not appear 91 

But if the slave should do this without the consent of the owner, 
Sabinus holds that I ought to be allowed a noxal action ; the act 
of the slave, he says, ought not to prejudice" the owner except so 
far as to cause him to lose the slave, seeing that he did no wrong 
himself. 

3 JULIANUS (Digest 2) In pursuance of this Edict, where 
a man has maliciously contrived that some one who was cited 
should not appear to the action, there is a good right of 
action in factotm against him for an amount equivalent to 
the interest the plaintiff had in the defendant appearing. In 
this action the inquiry will embrace the question what loss the 
plaintiff suffered in consequence of the non-appearance ; for in- 
stance, where the defendant in the meantime acquired ownership 
in the subject-matter of the suit by effluxion of time or was 
discharged from liability to an action. 1. No doubt, if the party 
who contrived that the defendant should not appear is insolvent, 
it is only just that a fresh action should be allowed against the 
original defendant himself, lest he should make gain and the 
plaintiff suffer loss by another man's ill practice. 2. If the 
promisee and the promisor in the stipulation are both prevented 
from appearing in the action, one by the contrivance of Titius 
and the other by that of M&vius, each may bring an action 
m faettwm, against the person by whose contrivance he was hin- 
dered. 3. If the promisee is prevented from appearing by the 
contrivance of the promisor and the promisor by that of the 
promisee, the praetor ought not to give any relief to either of 
them; the two cases of dolus may be set off one against the other. 
4 If I stipulate with the surety for fifty in case the defendant 
fails to appear to the action, where the amount that I am suing 
for is a hundred, and the defendant is prevented from appearing 
by the ill contrivance of Sempronius, I can get a hundred from 
Sempronius. This is in fact what my interest is held to amount 
to, because, if the defendant had appeared at the trial, I could 
have proceeded on a valid right of action which I had against him, 
or, say, his heir, for a hundred, although the amount which the 
surety engaged to pay were not so much. 



92 Where a man fails [BOOK n 



XL 

WHERE A MAK FAILS TO OBSERVE AN UNDERTAKING TO 
APPJH3AR TO AN ACTION* 

GAIUH (on tlw provincial Kdivt 1) [With regard to the 
time within which appearance is to be made] the pnetor lays down 
that one day nhould be given for every twenty thousand paces of 
distance, in addition to tine day on winch the undertaking is made, 
and the day on which the party is to appear. Certainly where the 
time IK calculated with reference to the distance on the above scale, 
there IK no hardship inflicted on either of the litigating parties, 

IT&WANITS fan flu* prnriiwud Edict 74) The law does not 
require that a defendant should appear to the action where the 
matter in connexion with which ho promised to appear IB com- 
promised ; but thin in only HO where the compromise fo made before 
the day on which the party was bound to appear; at the same 
time, if it in made afterward**, an action on the promise ought to be 
met by an wwirtio of <totH* : indeed, who would ever take any 
trouble about tho promine of a penalty when the matter has been 
compromined ? The fact in any one would wuppoHC that the mere 
4'sww/*tio of * coinprowiHO made* would bea good pica, on the 
ground that the coinpromiMO included the liability to penalty itself, 
unless the partien exprcnnly agreed otherwise. 1. If a man fails 
to appear to an action in accordance with hits promise, without any 
ill contrivance of bin own, owing to nome hindrance connected with 
the dincharge of a municipal office, it is quite right that he should 
be allowed an vxwptlo, 2, On the name principle he ought also 
to le relieved if he wan not able to preHent himself at the trial 
beeauHe he wan required elnewhere an u witnoHH, 3. Where a man 
promiHOH to appear to an action, and in unable to do BO because he 
i prevented by ill-health or a ntonn or the Htrength of the current 
In a river, he IHIH a good Mwyttio ; which in very reasonable, as 
such a promiKO requiren periumal attendance, and how was it 
poawible for a man to appear who wan hindered by bad-health (etc,)? 
For thin rainon even the Twelve Tablet* lay down that if the judge 
or either of the litigating partita* nhould l>e hindered by a serious 
ilinens, the day of the trial IH to be put off 4. If a woman fail to 
appear, not on the ground of ill-health, but becaune abe is expecting 
her confinement, according to JUbeo, 8he ought to be allowed an 
avceptw : but if nhe keepH her Ixxl after the birth of the child, it 



TTT. 33] to observe an undertaking 93 

ought to be shown that she is prevented by what amounts to ill- 
health. 5. A similar rule holds where a defendant becomes 
insane ; a man who is hindered by insanity is hindered by ill-health. 

6. With regard to the above statement that a man is relieved even 
where his failure to appear is owing to a tempest or the force of 
a current, we must understand the word tempest to apply equally 
whether it is by land or sea ; it is, in short, such a tempest as 
prevents either a land journey or navigation, as the case may be. 

7. The force of a current does not imply a tempest ; but the expres- 
sion applies as well where the breadth of a river constitutes the 
impediment, whether the bridge is broken down or the ferry-boat 
is not to be found. 8. Suppose, however, a man had had it in hia 
power to avoid encountering a tempest or a strong stream by 
starting earlier or making the voyage at a suitable time, but he 
created his own difficulty, are we to say that he will get nothing 
by an exceptio ? This point is one to be decided on cause shown. 
The rule cannot be 1 laid down so strictly on the one hand that he 
can be asked why he did 8 not set out a long time before the day 
which was mentioned in the promise; nor on the other hand can 
he be allowed to excuse himself on the ground of tempest or the 
force of a stream if his delay was at all his own fault Suppose, 
for instance, a man who was at Borne at the very time when he 
made the promise to Appear at the trial should, without any urgent 
need, have gone off to a provincial town to amuse himself : how 
will he be the better for such matter of exceptio ? or how if there 
was a storm at sea, but the party was able to come by land ; or, in 
the case of the stream, to make a circuit so as to avoid it ? Here 
again we must say that the exceptio will not be open to him as 
a matter of course ; unless indeed the want* of time was such that 
he could not accomplish the journey by land or avoid the stream in 
the respective cases. Of course, if the stream overflowed to such 
an extent as to flood the whole place where he had to appear, or 
some unforeseen disaster wrecked the place, or made it dangerous 
to approach it, then too the exceptio must be allowed him on 
principles of fairness and justice. 9. In the same way an exceptio 
is allowed to a defendant who desired to come to the trial, but was 
detained by a magistrate, such detention being without any ill 
contrivance (dolus) of his own ; if he took steps to this very end, 
or gave occasion for it, the exceptio will not serve his turn, but his 

1 For fit read t*t. 
8 er *tf read & 
* -After ntoi read htmpori*. M. 



{> Where a man fails [BOOK n 

own (tolw will prejudice Mm, though he will not be prejudiced by 
dolm on the part of any one else, by whose contrivance he was 
kept back. Still, if he is kept back by a private person he will get 
nothing at all by an Mttrtyrtio founded on the circumstance 

3 PAULTTS (on thr Etlht <>9) but he in allowed an action 
against the person who kept him back for an amount corresponding 
to the IOSH it occasions him (id (jiwd interest). 

4 Uu'iANUH (on tlw fidwt 74; Again, if a man was not able 
to appear at a trial because he had already been condemned on 
a capital charge, in that case he IH excused, and with reason. By 
condemnation on a capital charge we must understand a case 
where a man in punished by death or exile, it will perhaps be 
Hui<l what in the use of this twwp&io to a man who is condemned? 
But the answer is that it is required by his sureties ; it is also of 
UHC in case he has gone into exile without losing his citizenship, as 
then the <wa i ptfa will l>e available for any one who takes up his 
dcfttmw. 1. One point must be remembered, that a man who 
failed to appear because, he was arraigned on a capital charge is in 
that legal predicament that ho cannot avail himself of the twceptio; 
the cane in which it is allowed in whore he 5s condemned. It is 
true that if the reason ^hy he failed to appear was that he was pro- 
vented by imprisonment or military arrest, iivthat case his position 
is one in which he can have the mwfrtio. a. We may add that if a 
man fails to come, because he in hindered by a funeral in his family, 
he ought to bo allowed the Amy;//0, 3. Again, if a man is in 
bondage in the hands of enemies, and for that reiuson fails to appear, 
he must have the Umefit of the <'/my;//a 4. The question has been 
rained whether an agreement can be made to the effect that no 
I'stwftHo whull be pleaded at all, where a man breaks an engagement 
which was intended to HCCUKO that lie would appear to an action ; 
but AtiiicinuH holds that such an agreement in void Kor my own 
part* I Hhoiild nay that the agreement in valid, provided express 
mention IN made of the particular grounds of mreptio, and the 
promisor undertook voluntarily not to rely on them. 5. Again, 
tluH question IH asked ; nuppone a man who wsw i\oi bound to find 
HurefcieH for appearing to an action neverthelesw promises with 
wiretiefy will liin Huretien IKS allowed an ejectsf)tio1 I should say 
that the e*wontiul question IH whctlicr mich a promise with sureties 
wan given owing to a mistake, or in purwiatico of an agreement ; if 
it wan owing to a mmtake, the nuretien ought to bo allowed the 

; if in purnnance of an ttgreettient, they certainly ought not. 



TIT. xi] to observe an undertaking 95 



Julianus himself says : "if a man by way of assurance that he 
appear to an action promises through ignorance a larger sum than 
is laid down, an exceptio ought to be allowed"; but if a promise 
is made of the same sum in pursuance of an agreement, then, 
says Julianus, the exceptio will be neutralized by a replicatio of 
"terms agreed upon." 

5 PAULUS (on the Edict 69) There are two co-promisees, and 
the debtor promises one of them under a penalty that he will appear 
to an action, but the other hinders him from doing so. In this 
case no exceptio will be allowed in bar of an action by the first, 
unless the two are partners; but it will then, for fear lest the 
result of the fact of partnership should be that the one [who does 
the wrong] profits by his own ill-practice. 1. Again, if there are 
two co-promisors, and one, on being sued, declines to appear at the 
trial, in disregard of the promise he made to secure his appearance, 
whereupon the plaintiff demands from one the thing which is the 
subject of the litigation, and the penalty for non-appearance from 
the other; the action for the penalty will be barred by an exceptio, 
2. On the same principle if a promise is made by a father to the 
effect that he will appear at the trial, where an action is brought 
on his son's contract, and, after that, the plaintiff sues the son on 
the contract, he will be met with an exceptio if he then sues the 
father on his promise: and there is a corresponding rule in the 
converse case if the son promises to appear and the plaintiff then 
sues the fether in an action depeculio. 

6 GAITTS (on the Twelve Tables 1) Where a man finds a surety 
and then fails to appear, for the reason that he is absent on public 
service, it is not just that the surety should be bound on another 
man's behalf, so as to have to appear to a suit where the other 
himself is free not to appear. 

7 PAULUS (on the Edict 69) If a man promises that a slave, 
or any one who is in the potestas of another, shall be produced to 
meet an action, he has every exceptio that he would have had, if 
he had been surety for some one who was free or me juris, except 
an exceptio alleging that the slave was absent on the public service, 
as a slave cannot be absent on public service. Setting aside this 
exception, all the others, being of general application, are available 
both in the case of a free man and in that of a slave ; 

8 GAITTS (on the provincial Edict 29) and if, in three or five 
or more days after the defendant jrog to have appeared, according 
to his promise, he gives the plaintiff an opportunity of proceeding 



96 Where a man fails [ BOOK n 

against him, and the latter's legal position is none the worse for 
the defendant's default, it follows that he must be held to have 
a good defence by way 



9 ULHAOTS (ou the Edict, 77) If a slave promises to appear 
to an action, the stipulation cannot be sued on either against the 
slave or his sureties. 1. If an engagement is made by one 
stipulation in respect of several slaves to the effect that they shall 
all be produced to meet an action, the whole penalty is incurred, 
according to I^abeo, though only one should fail to appear, because 
it in a fact that they were not all produced ; still, should a pro- 
portionate penalty he ottered for the one slave, Labeo holds that if 
an action is brought on the stipulation, the defendant will have an 
doff. 



10 PAUU/S (on Pkntthw 1) If I promised that a particular 
man should appear to an action who IB alleged to be already dis- 
charged from liability by lapse of time 1 , an action must be allowed 
against me to call upon me either to produce this man or else to 
defend the action on his behalf, in order that an inquiry may be 
made into the facts, L A slave for whose production a promise 
had boon made died before the day by the ill-contrivance of the 
promisor; it is In accordance with ascertained practice that the 
jwmlty cannot be demanded before tho day- arrives ; as the whole 
stipulation is hold to be referred to that day, % A man who 
desired to bring an notion for iujwria, stipulated that the other 
party should appear to the action, but, fulfilment of the promise 
having become due, the promisee died hoforo joinder of issue*. It 
was held that his heir hud no right to an action on the stipulation, 
because stipulations of that kind were only had an subsidiary to 
the inuin nation, and an action for injuria is not open to the heir 
of the party wronged. In short, although the benefit of a stipulation 
Huch as named, which is made for Keeuritig the appearance of some 
one to an action, docn pawn to the heir, still in thin case the action 
ought not to be allowed ; the deceased himself, if he had chosen 
to drop the action for y>yw/w, und yet to sue on the stipulation, 
would not have Inwn allowed to do HO. A similar rule, it was held, 
would apply if I proposed to bring an action for iwfoma and the 
defendant died after the time hod arrived for suing on the stipula- 
tion, an I have no right of action on stipulation against his heir; and 



ttoloitd, M, 
Put auto L a after nmmitsa ttiputatvw* M. 



TIT. xi] to observe an undertaking 97 

with this Julianus agrees. Accordingly it is equally tnie that, if 
sureties were given, no action will be allowed against them after 
the death of the principal. Pomponius says the same, provided 
the death does not take place a long time after, because, if the 
deceased had appeared, the plaintiff might have carried the suit 
as far as joinder of issue. 

11 ULPIANTJS (on Sabinus 47) If a man promises that anyone 
shall appear to an action, he ought to procure that he appears in 
the same legal position (cawd). To procure him to appear in the 
same position is to make him so appear that the plaintiff is not in 
a worse situation for carrying on proceedings, although he may 
find it more difficult to get the redress which he demands. For 
even if there should be greater difficulty in this last point, still the 
rule is that the promisor is held [in such a case] to have procured 
the party to appear in the same position ; even if he should have 
contracted a fresh debt or have lost his money, he is still held to 
appear in the same position, from which it follows that, even where 
a man appears after he has become a judgment debtor to someone 
else, he is held to appear in the same legal position. 

12 PAULUS (on Sabinus 11) But where a man is enjoying some 
fresh special immunity (novim, primlegimn), he cannot be held to 
appear in the same position. 1. One thing must be borne in 
mind, that any estimate of the amount of the plaintiff's interest 
must be made with reference to the day on which the defendant 
was bound to appear, not to the day when the proceedings com- 
mence, although by that day the plaintiff should have ceased to 
have any interest. 

13 JTJLIANUS (Digest 55) If at any time a slave should, as if 
he were proceeding to litigate on his own account, either stipulate 
with another for appearance at the trial or make a promise to appear 
himself, the stipulation confers no right of action, nor are the 
sureties bound, as a slave cannot be either defendant or plaintiff 
in an action. 

14 NEBATIUS (Parchments 2) If a man stipulates as 'procurator 
for another that the promisor shall simply procure the appearance 
of whoever it is that is the subject of the engagement, but does not 
go on to stipulate for a penalty in case that person should not 
appear, such a stipulation can hardly be said to be of any value at 
all, because the procurator, so for as he is himself personally 
concerned, has no interest in the party's appearing* As however 
he is acting on someone else's behalf in making the stipulation, it 

M* J. 7 



98 Where a man fails to observe an undertaking [BOOK n 

may very well be argued that the person whose interest ought to 
be considered in the matter is not the procurator but the principal 
on whose behalf he acts, so that, if the defendant fails to appear 
there should be payable to the procurator, in pursuance of the 
stipulation, an amount equivalent to the interest which the prin- 
cipal in the case had in the party appearing. The same rule would 
apply, indeed it would apply still more strongly, if the procurator 
should have stipulated in such words as these "whatever is adequate 
compensation (quanti w -m* mV)/ 7 HO long as we understand this 
form of words to relate not to the procurator's own concern in the 
matter, but to that of the principal. 

16 PAHNIANUB \QwMtwynu 2) If a guardian promises to appear 
to an action and does not observe his promise, and in the meantime 
the ward Incomes of full age, or dies, or even is made to renounce 
an inheritance [on which the action wan founded], no action will 
be allowed on the stipulation. Indeed, if an action had been 
brought on the main question, and judgment therein given against 
the guardian, and then any one of the above events were to happen, 
it IK established law that no action on the judgment would be 
allowable against the guardian. 



xn. 

<>N KKABT-OAYH, AWOUHNMTCNTH, AND DIFFERENT SEASONS. 



Ow iitt ttw (hurt* 4) It in net forth in an address 
of the Divine Marcus that no one in to compel his opponent to 
attend to stand a trial at the season of harvest or vintage, as men. 
who arc aigaged iu agricultural matters ought not to be compelled 
to come to the /0rwt. 1. If however the protor, through 
ignorance or stupidity, should persist in summoning such persons, 
and they choono to come, then, if lie deliver judgment in the case, 
they being there pnwnt ami voluntary parties to the action, the 
judgment will bo good in law, although the magistrate who ordered 
them to attend wore wrong in doing so; should they however 
throughout keep away, and the (motor pronounce judgment in 
spite of their altoumce, it follows from the above that we must hold 
the judgment to be of no validity, as the law cannot be set^ aside 
by the act of the pnutor; accordingly the decision will, without 
any appeal, be held of HO account & Certain circumstances 
however there arc in which there is an exception to the rule, in 



TIT. xu] On feast-days, adjournments, etc. 99 

the case of which persons may be compelled to come before the 
praetor, even at a time when harvest and vintage are going on; for 
instance, where the subject-matter of the suit would be lost by 
lapse of time, that is to say where lapse of time would take away 
the right of action. No doubt whenever the matter is pressing, 
persons are compellable to come before the prsetor, but they can 
only be compelled to attend so for as to join issue, and this is set 
forth in the very words of the address: indeed, if either party 
should after joinder of issue decline to proceed with the action, the 
address allows him to have the case adjourned. 

2 THE SAME (on the Edict 5) The Divine Marcus enacted, 
reciting the above address in the senate, that the praetor might be 
applied to in some further cases, even on holidays : for instance, 
for the appointment of guardians or curators ; to admonish persons 
who neglected their duties; to hear excuses; to order alimentaiy 
provisions; to ascertain persons' ages; for orders that possession 
might be taken on behalf of unborn children (ventris nomine), or 
for the sake of preserving property, or by way of security for the 
payment of legacies or Jidefrcamnissa, or in cases of damnum 
infectvm-, also for orders for discovery of testaments; for the 
appointment of curators of the property of persons as to whom it 
is uncertain whether theye will be an heir to succeed them or not ; 
for orders for the maintenance of children, parents, or patrons, or 
for making entry on inheritances suspected to be insolvent, or for 
ascertaining by ocular proof the extent of an aggravated mjuria, 
or l executing fide-commissary manumissions. 

3 THE SAME (on the Edict 2) Again, where property is likely 
to be lost by lapse of time or by death, the practice is for justice to 
be administered even in the season of harvest and vintage. The 
loss to be feared may be by death, as where the action is for theft; 
mischief (dammm ivywria), or aggravated myima; or in cases 
where any one is alleged to have committed robbery at a fire, or 
the fell of a house, or a shipwreck, or after violent capture of 
a boat or a ship; and similar cases. The same holds where the 
object of the proceedings would be lost by lapse of time, or the 
period within which an action may be brought has nearly expired. 
1. Moreover inquiries as to whether a man is free or a slave can be 
heard to the end at all times of the year. % Similarly justice will 
be administered at all times in a case against a man who accepts 

1 After vel ins. de, and' for litertas read lilertate. Of. M. 

7-2 



100 On feast-days, adjournments, [BOOK n 

anything as the price of market-day feasts (nundinarum nomine] 
contrary to public policy, 

4 PATJLTTS (on, the JSdwt 1) The praws of a province usually 
lay* down what are to be the dayw 1 of harvest and vintage in 
accordance with the custom of the particular locality. 

5 ULPiAKCfH (OH tlw Edict 62) (hi the last day of December 
the magistrates are not accustomed to administer justice, or even 
to hear any applications at all. 

6 THK HAMK (on the Etfwt 77) With regard to judgment 
being given on a holiday, it is laid down by statute that there is to 
be no trial had on such a day except by consent of the parties, and 
that if any judgment in given in contravention of this rule, no one 
IH hound to do any act or make any payment in pursuance of such 
judgment, and no officer in whoKe court any application is made in 
the matter i to compel otKulicnce to the judgment. 

7 THK KAMW : <w thr office vfwHMtl 1 ) It IH no doubt set down 
in the addrenn of the Divine Marcun that an order giving further 
time for the production of document** it* not to be had more than 
once; at the wuuc time, for the convenience of litigating parties, on 
cauKO hhown, a Hccond order for further time in commonly granted, 
whuthur the docuwentn are in the name or a different province, 
mihjeet to regulutionH depending on nituatbn ; and this is especially 
done in the wine of Home unforcHcen occurrence. The following 
{joint w a fair matter for consideration ; whether, where a deceased 
purnon got un order for further time for production of documents, 
Kimilar leave should IH* given to hw HUCCCHHOI' alno, or are we to 
nay that, leave having U*en once given, no further extension ought 
to be allowed? Hut the better opinion in that on cause shown 
leave nhould be given to the HuecenHor an well. 

8 PAIT MTH \<*n HntMw* I*'*) According to the Roman custom the 
day begiuH at midnight and cndn at the middle of the next night 
CoiUHefjuently, whatever wtw done during thone four-and-twenty 
hoiiFH, that in two half nightn and an intervening period of daylight, 
in treated exactly UH if it hud been done at any hour of daylight. 

9 ULHANUH (<i thv ojffiw of pnwomid 7) The Divine Trajan 
laid down in a rescript to MiniciuH NaUlin that holidayn occasion 
ceHatiot of judicial bunineHH only, but matterw {>ertaining to military 
diKciplinc umnt be carried on oven on holidays j and this last will 
include iuNpuetion of 



Bcforo temput dot cau*a. M. 



TET. xn] and different seasons 101 

10 PAULUS (Sentences 5) In all pecuniary causes only one 
adjournment can be allowed in each separate case; in capital 
cases three adjournments may be given to the accused and two to 
the accuser ; but, on both sides, only on cause shown. 



XIII. 

ON STATEMENT OF PABTIOULARS AND DISCOVEBY OF 
DOCUMENTS, ETC. 

1 ULPIANUS (on the Edict 4) Whatever action a man desires 
to bring he is bound to give a statement of the nature of it ; it is 
perfectly just that a man who is going to bring an action should 
state the nature of the particular action, so that the defendant may 
thereupon know whether he ought to give way or to maintain the 
contest, and, in case he thinks proper to maintain it, may not 
address himself to the matter without being sufficiently equipped 
for carrying it on by being acquainted with the kind of action 
which is being brought against him. 1. The word 'edere' (to 
state etc.) includes also enabling the defendant to take a copy, or 
expressing the whole matter in a written statement (libellus), and 
handing it to him ; or (Rotating it Labeo adds that a man states 
the nature of his action when he takes his opponent up to the 
praetor's album and points out the form which he is going to 
dictate; or he may do it by mentioning the form which he wishes 
to use. 2. These statements should always be made without day 
and consul, lest, if these are given, some document should be 
concocted and drawn with an earlier date. But the praetor meant 
to bar the day and consul which give the date at which an 
instrument was executed, not that at which, in accordance with its 
terms, payment was to be made; as the day of payment is 
practically the most important thing in a stipulation. But when 
accounts are produced, the day and consul should be given, as 
a credit and debit account cannot be set out to any purpose unless 
'day and consul are given. 3. Everything ought to be discovered 
which the party means to produce before the judge; but the rule 
does not go so for as to compel a m%n to produce documents which 
he is not going to use. 4. A man is not held to make discovery of 
a stiptQation when he does not discover the whole of it 5. Persons 
who fail to make proper discovery) owing to some blunder caused 



102 On statement of particulars, [BOOKH 

by age, or want of education, or by sex, or any other sufficient 
cause, will be relieved 

2 PAULXTS (on the Edict 3) In an action for a legacy, the 
pnxitor does not require the precise words of the testament to 
be given [by the plaintiff], the reason of which perhaps is that the 
heir commonly has a copy of the testament. 

3 MAURICUKUH (OH, penattles 2) The senate decreed that no 
person against whom an action IK brought on behalf of the fiscw 
nhould be compelled to dincover to the informant any other docu- 
ment than Huch as relate to the cane in connexion with which the 
applicant declared himself to be informant 

4 ULPIANUS (<m MM Kdic,t 4) The prater says :~A man who 
keeps a l*anker*H table is bound to produce [to a customer] the 
account in which he in concerned, adding day and consul 1. This 
Edict IK founded on a thoroughly just principle ; the banker makes 
up the uceountH of every separate customer, consequently it is only 
right that books which he kept for me and 1 documents which might 
almost be mid to belong to me Hhould be produced for my inspec- 
tion* & The above worrit* comprehend the case of the banker 
being one under p<rtri<t pofcMux, HO that even a person in that 
portion IK compelled to produce accounts ; whether his father 
is bound too IN a question. Ijabco nays that the father is not 
bound, nnioHH the banking buninoHH IB being aimed on with his 
knowledge ; but Habunis very properly laid down that this liability 
mtiHfc l)c admitted where the son accounts to his father for his 
gauiH. 3. If, on the other hand, the buHinews is carried on by 
a Hlavtv- which H may bty-then, nays Labeo, if the slave carries 
it on with Inn owner's conncnt, the owner can be compelled to 
produce account**, and an action IH allowed against him, just as 
much as if he carried on the business himself- But if the slave 
acted without hiw owner'* knowledge, it in enough for the owner 
to uwttir that lie han not got the umnmtn wked for. If the slave 
carrion on tho bulking buninoHH with hin pewliim, the owner is 
liable dv pmtlio or <lu in wm wm> ; but if the owner has got 
the account and dedinon to produce it, ho fa liable for the whole. 
4 Kvon a man who !MH waned to wrry on the busitiess of banker 
fa compilable to produce documents. 5* As to place, a man is 
comj>eHal>le to produce at the npot where he carried on the busi- 
nexrt ; tltm IH iliHthictly laid down. In fact, if he has the books 
relating to the banking hutmtcHH in one province, and the manage- 

1 Kor meum road mmmqw. Of. M. 



TIT. xm] and discovery of documents 103 

ment was in another, I should say he can be compelled to make 
discovery at the place where he carried the business on ; he was 
in the wrong to begin with in taking the books away somewhere 
else ; and if he carries on his business in one place and is called 
upon to disclose in another, he is by no means compellable to 
do it : unless you desire copies at the spot where you make the 
application ; of course at your own expense : 

5 PAULUS (on the Edict 3) and in this case he must have 
time allowed him for bringing the accounts to the place, 

6 ULPIANUS (on the Edict 4) Should any banker, as often 
happens, have got his books at his country-house or in a store- 
house, he must either take you to the place or else give you a copy 
of the accounts. 1. The successors to the banker's estate are 
equally compellable to produce the account. If there are several 
heirs, and one has got the account, he alone is compellable to 
produce it* If all have accounts, and one produces, all the others 
can be compelled to produce too; as the one who produced 
might be some obscure person of no consideration, so that any 
one might reasonably be in doubt as to the good faith of the 
production. Accordingly, to enable the different accounts to be 
compared, the others are bound to produce as well, or, at any 
rate, sign the account produced by the one. A similar rule 
applies to the case of there being several different bankers from 
whom production is required ; there is no doubt that, if several 
guardians managed a guardianship together, they must either 
all disclose or sign the account disclosed by one of them. 2. The 
person, however, who applies for the order on the banker is 
required to swear that he does not ask for production with vexa- 
tious intent ; otherwise he might ask for accounts which he does 
not require, or which he has got already, in order to give trouble 
to the banker. 3. An account, Labeo says, is a statement of 
mutual transactions of payment and receipt of credit and debt 1 
for the purpose of incurring or discharging obligations, and no 
account can begin simply with the bare payment of a debt 
Moreover, where a party takes a pledge or [security by way of] 
mandatum, he is not compellable to make discovery of the fact, 
as these lie outside the account But a banker is bound to 
disclose any payment which he engaged for by eonztitutum -> 
this is included within the scope of the business of a banker. 

. 4 An action lies in pursuance of this Edict for the amount of 
1 After oredendi IDS. debendi. M. 



104 On statement of particulars, [BOOK n 

the plaintiff's interest ; 5. from which it is clear that the Edict 
only applies where the account it* one in which the plaintiff is 
concerned ; and an account may be said to concern me when you 
kee'p it at my request. But if my agent made the request in my 
absence, will it have to be disclosed to me on the ground that 
it concerns me 1 ' The better opinion is that it will. Moreover 
I have no doubt that, where a man has an account for me, he 
must produce it to my agent, as one that concerns him ; and' the 
latter must undertake that I will ratify his act, if I gave him no 
mandate. 6. If where the books begin there is a date, and in 
such books Titius's account is written, and this is followed by my 
ummnt without day and consul, I can ask to have day and consul 
given for me too ; as the day and consul put at the beginning 
apply to the whole of the account. 7. Production of an account 
is dictating it or delivering a written statement or showing an 
account-hook, tt. The pnotor says : " I will order discovery to 
be made to a banker, or to one who asks for discovery a second 
time, only on muse shown/' 0. The reason why he objects to 
discovery being wade to a banker w that he himself has the 
means of being fully informed by hiH own professional papers, 
and it would bo alwurd that the very man whose position is such 
that he is Ixmnd to produce documents should make an applica- 
tion to huvo document** produced. AH to the question whether 
discovery of documents cannot be demanded even by the heir of 
u Iwinker, this in a point to consider; but the answer IB that 
where the books of the business have come to the heir's hands, 
bo hoH no right to discovery, but, if not, the order will be made 
cm cauHo whowiu Indeed, on sufficient cause, the account must 
be discovered to the banker himself ; for instance, if he proves 
that ho has lost bin accounts by shipwreck, or by the fall of 
a houHti, or by a fire, or some similar accident, or that he has 
them at a great distance, for instance, beyond seas. 10* Again, 
the prmtor wall not order production on a further application, 
except on cause nhown : 

PAIHAJH (on the Edict 3) for example, where the applicant 
nhowB that ho hat* left in foreign part** the account already fur- 
irinhod, or that tlwcovery wan insufficiently made, or where the 
account* are HOIHO which ho lost by unavoidable misfortune, but 
not by bin own neglect- 1. If ho lost them by aome mishap 
which IH excunable HO far OH he iw concerned, frcHh discovery will 
bo ordered. Tho ubovo oxproHnion "further" (iterwn) has two 



. xm] and discovery of documents 

significations ; one in which it refers to the second time, which the 
Greeks express by Sevrepov, while the other comprehends subse- 
quent times as well, for which the Greeks use the word Trafav, 
which is treated as equivalent to * whenever it is necessary." It 
may come to pass that a man loses an account which has been 
furnished to him twice, and in this case the word iterum is taken 
to mean ' time after time/ 

8 ULPIANTTS (on the Edict 4) Where a banker is called 
upon to discover his accounts, he is liable to be punished if he 
maliciously contrives to avoid producing them, but he is not 
answerable for negligence, unless it comes very near malice. 
A man declines discovery maliciously both where he produces 
(sic) accounts with a sinister object and where he declines to 
produce them at all. 1. Where a man offends against this Edict 
he has to pay by way of damages an amount equivalent to the 
interest I had in having the account produced at the time when 
the order was made by the praetor, not the interest I have now ; 
consequently, if my interest has ceased altogether, or has come 
to be less or greater, the right of action will 1 [still exist, and it 
will] be for neither more nor less than if my interest bad been 
unchanged. 

9 PAULTIS (on the Edict 3) There are some persons who are 
bound to discover accounts, but who nevertheless are not com- 
pelled to do so by the praetor in virtue of this Edict. For example, 
where an agent has managed some one's affairs or accounts, he is 
not compelled by the praetor to produce an account on pain of an 
action in factum ; because, in short, the same end can be arrived 
at by an action on mandatum. Similarly, where a partner has 
managed the partnership affairs dishonestly, the praetor does not 
interfere in pursuance of the above words; because there is 
the action pro socio open. Again, the praetor does not compel 
a guardian [under this head] to furnish &n account to his ward ; 
but the practice is to compel him to furnish it by the action on 
tutela. 1. It makes no difference whether the successor or the 
pater/amiKas or the owner of the baiiker, [if the banker is a slave,] 
is of the same profession himself or not ; seeing that, as they step 
into the place of the banker and his legal position, they are bound 
to discharge his liabilities. But a person to whom the banker may 
have bequeathed his account-books cannot be held to be included, 
as the words only point to one who succeeds to his legal position; 

1 After babttit read mfetu et hah&it. Of. M. 



106 On statement of particulars, [BOOKII 

a legatee is no more included than he would be if the banker 
had given him the books in MH lifetime. In fact, the heir him- 
self will not be bound, Huppowing he does not possess and has 
not maliciously contrived to avoid possessing; still if, before he 
delivers them to the legatee, he should be warned not to deliver 
them [until the application is heard], he will be liable, [if he does 
deliver them,] an for malicious contrivance ; he is also liable so 
Jong as he ban not delivered them. If the heir has delivered them 
without malicious intention, then, on cause shown, the legatee can 
be compelled to produce them. 2. Money-changers too (nummu- 
larii), a we read in PomponiuH, may reasonably be compelled 
to furnish account**, sw* money-changers keep accounts just like 
bankers ; they receive money and they pay money out, so much 
at a time ; and the evidence of their receipts and payments is 
chiefly to be found in their written entries and account-books, 
moreover reliance in constantly put upon their good faith, 3. As 
a fact, the {motor orders discovery to be made to all persons who 
apply for it of nuch accounts as they are concerned in, an oath 
being token by the applicant** that they do not make the appli- 
cation with voxutiouB intent 4. A man in concerned in an 
account, not only where he in hhnnelf party to the contract, or 
IUIH Kucceedod to one who wan a party, but alno where some one 
subject to his jpwfr'jtfrfjt in mich a party. 



10 OAH/H (r>w the. yjwfvwuV*/ Ediff, 1) A banker in ordered to 
produce account** ; and it matter* not whether the cawo in which 
the application in made in one to which the banker is a party 
or not 1* The ramon why the pnctor compel** only bankers to 
produce their account*, and not other pernonH enjeaged in a busi- 
IICHH of a different kind, in that their duties and services are 
diHcharged in the interwt of the public, and their mont esuential 
function in that of keeping a careful account of their proceedings. 
2, An account in regarded UH produced if it in produced from the 
commencement (<t w/;/te) ; unicm an account in examined from 
the commencement, it cannot be undowtood ; thin of course does 
not mean that everybody in to be free to innpect and copy the 
whole of a man'H book of accountH and all hh parchments, but 
only that that particular portion in to IK> injected and copied 
which ewiH to K* v the applicant the information required. 
& The mcaHuro of dauwgCH in the action being an amount 
equivalent to the intercKt which the plaintiff has in the account 
being produced, the rcwilt in that, whether the applicant suffers 



TTF. xm] and discovery of documents 107 

adverse judgment in an action brought against him, or he is 
unsuccessful in an action which he brings, for want, in either 
case, of the accounts by which he might have supported his case, 
he will recover in this action whatever is the extent of his loss. 
Let us consider, however, whether this is really a practical rule : 
as a matter of fact, if the plaintiff can prove before the judge who 
hears the case between him and the banker that [if he had been 
famished with the account] he would have been successful in the 
action which he lost, then he must have been in a position to 
prove his point in that action itself [without the account]; so 
that, if he did not prove it, or he proved it, but the judge did 
not attend to the proof, he has only himself to blame, or else 
the judge. However, this argument is not sound. It may well 
happen that by this time [,when he sues the banker,] he has got 
hold of the accounts, either from the hands of the defendant 
himself, or in some other way, or he may be able to prove, by 
means of other documents, or of testimony, which for some reason 
or other he was not able to bring forward on the former occasion, 
that he would have been able to succeed in the former action [if 
he had had the accounts]. It is precisely on this principle that 
a man has a condictio or an action for damnum injuria if a 
written assurance is stolen or destroyed ; because, though persons 
may have been unable to prove some matter or other at first, 
owing to an assurance being abstracted, and consequently have 
lost their case, they may be able to prove it now by means of 
other documents and testimony which they could not make use of 
on the previous occasion. 

11 MODESTINUS (Rules 3) It is established law that copies of 
documents can be properly produced without the signature of the 
party who produces them, 

12 CAIAISTRA.TTTS (on the monitory Edict 1) Women are held 
to be excluded from the functions of a banker, as that business is 
one for men. 

13 ULPIANUS (on the Edict 4) This action is not allowed after 
the lapse of a year, nor against the heir [of the banker], except in 
virtue of some act of bis own. It is allowed to an heir. 



108 On Pact* [ BOOK n 



XIV. 
ON PACTS. 

ton the Edict 4) The justice of this part of the 
Edict in founded on Nature : what indeed can be so much in 
accordance with mutual trust among men as the principle of 
abiding by what persons have agreed to ? L Pactum is derived 
from jHirtio - the word paw comes from the same origin- 2. and 
jwr<8frV> moans the consent and agreement of two or more persons 
to the name effect 8. The word 'wnwwtio* is a comprehensive 
term applying to all matter*) about which persons who have 
dealings with one another agree by way of forming a contract 
or corn promising a dispute ; for just as men are said 'couvenire' 
<to come together) when they are brought together and come 
from different places to one place, HO too, when men, starting 
from different inclinations of the mind, make some common 
agreement, in other words, have come to arrive at one resolu- 
tion [, the name word may be used|, So true IB it that the term 
* convention* is of general application that Pedius makes the nice 
observation that there is no contract and no obligation, whether 
concluded by act or by set words, but it involves a convention ; 
oven a stipulation, which is made by a set form of wordy, is null 
and void, unless it involves agreement 4. Most conventions how- 
ever (some to be classed under some special head, such an that of 
Hale, letting, pledge or stipulation. 

2 PAW.TTH (on the Kdlti X) tatao says a convention 1 may be 
ma/do by act or by letter or by a messenger ; in fact, he says, it 
can be made with un absent person. Moreover it is understood 
that a convention may l>e by agreement, even when made tacitly; 
L accordingly, if I return to my debtor a written undertaking 
which he gave mu, it is held that there is a convention between 
UH that 1 shall not HUC him, and the law is that, if I do, he will 
have a good Mwyttfo founded on the convention, 



3 MODKHTINHH (H'uh'x 3) When, however, an article pledged 
for debt is restored to the debtor, then, if the money is not paid, 
there in no doubt that an action can t>e brought for the debt; 
uuleBB it in oxprcHrily proved that the contrary wan intended. 

1 For Miwtnire road 



TIT. xiv] On Pacts 109 

4 PAULTJS (on the Edict 3) Again, as valid conventions may 
be formed tacitly, it is held that where dwelling-houses (wrbanae 
hdbitationes) are let, the landlord has a hypothek on things "borne 
in and brought in " (invecta et illata) even where no express con- 
vention was made. 1. According to this, even a dumb man can 
make a 'pactwmS 2. One illustration of the above is the case 
of a stipulation made for giving dos ; there is no right of action 
for the dos before the marriage takes place, any more than if this 
had been expressly provided, and should the marriage not take 
place at all, the stipulation becomes inoperative without more 
(ipso jure). Julianus holds the same. 3. This lawyer was once 
consulted on the following case which occurred. An agreement had 
been made that, so long as interest was paid [on money lent], no 
action should be brought for the principal, but the stipulation had 
been drawn in absolute terms. Julianus held that the stipulation 
was subject to a condition, just as if this had been expressly 
provided, 

6 ULPIAKUS (on the Edict 4) Of conventions there are three 
kinds. The occasion of making them is either public or private, 
and a private convention either is statutable or is founded on 
the jus gentium. A case of a public convention is that of one 
which is made to conclude peace 1 , military commanders having 
come to such and sudi terms with that object. 

6 PAULTJS (on the Edict 3) A statutable convention is one 
which is made binding by some statute. Accordingly, in some 
cases a right of action is created or taken away by a pact, that 
is, where this construction is supported by a statute or a decree 
of the senate. 

7 ULPIAJHJS (on (he Edict 4) Of conventions founded on the 
ju$ gentium some give rise to actions and some to exceptions, 
1. Those that give rise to actions are not simply referred to 
under the name convention/ they have come to be classed tuidei 
the special designations appropriate to the particular contracts 
respectively, such as purchase and sale, letting and hiring, partner 
ship, loan, deposit and similar names. 2. Even if the matter does 
not come to be assigned to some special class of contract, still i 
there is a sufficient additional ground (causa), then, according 
to Aristo's well expressed reply to Oelsus, there is an obligatioi 
formed. For example, I gave you one thing on the understanding 
that you should give me another, or I gave you a thing on th< 

* Head pro pace. Of. M. 



HO On Pacts [BOOKH 

understanding that you .should do womething ; this, says Aristo 
mnounta to a "xynalfaffHw,* and a civil obligation will arise upon 
it. Accordingly I ahould say that Julianun was rightly taken to 

task by Mauriciaims in reference to the following case ; I gave 

von SticluiH on the understanding that you should manumit 
PumphihiH, and you manumitted Pamphilus ; but Stichus was 
recovered by some third person in virtue of superior title (evicr 
tm). thilianuK tells UH that the pnetor must allow you an action 
? f<ninm (ugaiiiHt me], but the other nays that your case is met 
by a civil action for an unliquidated amount (uuiUs incerti actio\ 
that in to wiy, an action in net ternm (2>r(mwiptw verbis), as there 
IH a contract formed, or, UK Arinto calln it, * synallagina,' and upon 
that thin action urines, & If a promise in made with reference 
to Koine illegal act sis an inducement to alwtain from committing 
it, on Mich an agreement no obligation can ariHe. 4. If there is 
no additional ground (mww), in that cane it in certain that no 
obligation can bo erented, [I mean| on the mere agreement; so 
that a baro agreement (niuliuto fMctwto) doen not produce an 
obligation, it only produce an wMiytw. f>. To be precise, it 
doeH HomctinuM %ivu ilK nhapo even to an action, as in lonafide 
<?UKCM ; it in a common Having that agreementn by way of pact 
(ptwtit Muwnftt an*, embodied in hona fain actions But this 
iniiHt be understood to mean that if tho p&ct follows as part of 
one continued trmsuction, it in included in the agreement so as 
evon to givo ground to an action ; but, if it follows after an 
interval, it in not included, nor will it be of any force, HO far as 
relied on by the plaintiff, an otherwiw we whould have an action 
founded on a pact Suppowe, for example, after a divorce, an 
agreement in made that the dm Khali not be given up [to the 
womanj at the end of the regular time for which it may bo held 
over, but at once ; thin agreement will bo of no force, or else 
there would be un action founded on a pact Marcellua tells us 
the name thing* Again, nuppone an agreement in made with refer- 
ence to an action on guardianship that interent Hhall bo paid in 
<$XCOHB of tho eHtitblinhed rate, thin will produce no effect, else 
there will bo an action founded on a pact ; whereat* tho pacts 
which are omljodied in the agreement arc thowe which make the 
very termn of the contract, that in, which were made when the 
contract wtw originally formed. Thw wart declared to my know- 
ledge by htpimanuH, who added that If, Hubttequcutly to u purchase, 
Homo agreement in wade after un interval which goon beyond the 
natural character of the contract* no action <w empto [purchaser's 



TED, xrv] On Pcwts 111 

action) can be brought thereon, owing to the same rule, viz. that 
no action is to be founded on a pact The same must be said in 
respect of all kinds of bona fide actions. But on the side of the 
defendant the pact has force, because, according to the ordinary 
practice, pacts give ground to exceptions, even where they are 
interposed subsequently. 6. So true is it that pacts 1 which are 
made subsequently, and which are connected with the contract 
in question, are included in it, that it is recognised law that 
in purchases, and indeed in bona fide cases in general, so long 
as nothing further has been done, the purchase may be aban- 
doned. But if it can be abandoned altogether, why should 
not a part of it be altered by a pact? This is in fact what 
Pomponius tells us is the case (on the Edict 6) ; and, that being 
so, a pact will produce an effect even on the side of the 
plaintiff, and will constitute good ground for an action, where 
nothing further has been done; this on the above principle: 
why indeed, if the whole contract can be set aside, should it not 
be recast? The result will be that there is in some sort held to 
be a fresh contract. 

There is something ingenious in this view; consequently I am 
equally disposed to approve of a view which Pomponius supports 
in his books of Lectiones, that it is possible by means of a pact 
for a purchase to be* abandoned in part, on the view that the 
purchase of [the whole is revoked, and then that of] a part is 
made anew. On the other hand, there was a case where a pur- 
chaser died leaving two heirs, and the vendor made a pact with 
one of them that the purchase should be abandoned ; here, 
Julianus says, the agreement was good, and the purchase was 
avoided as to a share, seeing that in the case of any other 
kind of contract one of the heirs might procure an e&ceptio by 
making an agreement Accordingly both views are received law 
and very properly, I mean the opinion of Julianus and that of 
Pomponius too, 

7. The praetor says : " Pacts agreed on, where they are not 
made with malicious intent, nor contrary to statutes, plebiscites, 
decrees of the senate, or imperial edicts, and there is no fraud 
(fraus) on any of these, I will uphold." & Of pacts some are 
in rem some in personam. They are in rem wherever I agree 
generally that I will not sue ; in personam where I agree that 
I will not sue a particular person, e.g~ that I will not sue Lucius 
Titius. The question whether a pact is made in rem or in p&r- 
1 For exceptions react paetione*. Of. M. 



112 On Pacts 



[BOOK n 



sonant, in to be ascertained not more 1 from the words of the 
parties who made the agreement than from their intention very 
often, aw Pediuw nays, the name of a person is inserted in the 
pact, not in order to make the pact personal, but in order to 
make it plain who i a party to it, 9. The prsotor says he will 
not uphold a pact made with maliciouH intent (dolo w<ilo). Dolm 
m<dm is committed by cunning and deceitfulnesB, and, as Pedius 
says, a pact in made with dolu* malm whenever, in order to entrap 
the other party, a man aims at one thing and pretends that he aims 
at something cine, 

10* AH for pactH which appear to be made HO as to involve 
fr<w* (prejudice), the pnetor does not proceed to refer to them 
in fact* Ijalxu) waken the discriminating remark that, if he did 
HO, thin would either bo unjust or cine superfluous, It would 
be unjunt if, by the aid of it, a creditor who had once [by such 
at pact) given hi* debtor a bnna fide reletise should after that 
endeavour to nullity it ; but if the creditor were deceived into 
giving the wlts'isc, the inclusion of /raw would be superfluous, 
because JHueh|/mw in included under tlotw*. IL Whether the 
pad wan made with <iolu$ twdu* originally, or, after the pact was 
concluded, something or other w*ts done with dolns mains, there 
will be a good replication vmy;w) in both canes alike; thin is 
seeuwl by the words in the Kciict "and there is no fram" 
lit. With regard to the clause commonly inserted at the end of 
a puetr "Titius asked, MavittH promiKed,'* these wordn are not 
un(h i rHto(xi an only making a pact, but tin making a stipulation 
equally well, consequently an action <>x stijtulatu arises on them,, 
unlwH tlu^ <?i)ntrary ettect is expnwHly proved, that iw, that the 
wontH were uned with the intt'tttion of making a bare agreement, 
and not a stipulation, 13* If I make a pact with a man that no 
action shall IK* brought on a judgment debt", or no action for 
bunting a house, nueh a pact w valid. M. If I agree that I will 
not proceed upon n *' notification of novel ntructuro " (opens nom 
mnfMtlto), H<jme hold that the agreement ta not valid, on the 
gn>und that thin IH a mutter in which the proctor's right of com- 
mand (hufHriitM) cotnen in ; but bibeo utakcn thin distinction, 
if, hi) ay, the " notification of novel structure " m made in respect 
of private righln, Uo agreement can lawfully be made ; if it is 
made in connexion with state affairs, it is not lawful ; and this 
is a sound distinction* Accordingly tho law IB, aa to matters of 
any kind embraced by the prtutor'u edict, that where they do not 
1 For tfitwui reiwl mayi*, * l>ol. pro, 



OOT. xrv] On Pacts 113 

involve any question of injury to the public, but only concern 
private rights, a pact may be lawfully made ; in fact the statute 
permits a pact to be made by way of compromising an action for 
theft 15. Again, a pact not to sue in an action on depositum is, 
according to Pomponius, a valid agreement, and, similarly, where 
a man [sc. the depositee] agrees in a case of deposttwm to under- 
take the whole risk, this Pomponius says is a valid agreement, 
and is not to be set aside as being contrary to the rule of law: 
16. in short, to put it in general terms, in any case in which the 
pact lies outside every-day law it ought not to be observed ; f nor 
can any inhibition be imposed by legacy to a similar effect, and 
if an engagement not to sue should be made by way of oath, it 
need not be keptf 1 , so Marcelius says (Dig. 2); and if recourse 
is had to a stipulation in a case where a pact is unlawful, the 
stipulation is not legally binding, but must be absolutely rescinded. 
17- If a man [nominated heirj should, before entering on the in- 
heritance, agree with the creditors that they should take less than 
their debts, the pact will be valid. 18. But if it is a slave who 
makes the agreement, before acquiring freedom and with it the 
inheritance, having been appointed heir subject to a condition, 
then, so Vindius tells us, the pact will be of no avail; but 
Marcelius holds (Dig. 8) that a suus heres and a slave who is 
compulsory heir, both* being appointed unconditionally, if they 
make the pact before intermeddling with the goods, make it with 
effect, and this is sound. He says the same of an extraneous 
heir; and, if he should enter at the request of the creditors, 
Marcelius holds that he has in fact an action on mandatum. 
If however, to take the case mentioned above, a man made the 
pact while he was a slave, Marcelius holds that it cannot be 
pleaded, because it is not the practice that a man should, after 
acquiring liberty, get any advantage from what he did in a state 
of servitude; which cannot be denied as to the exceptio founded 
on a pact, but whether the law goes so far as to refuse an 
exceptio founded on dolus is matter of question. Marcelius in 
cases of the same kind allowed the exceptio doli, though at one 
time he was in doubt about it ; for instance, take this case : 
a jfiliwf<m$ia8 who was appointed heir made a pact with the 
creditors [that they should take a percentage], he was then eman- 
cipated, and he entered on the inheritance: whereupon Marcelius 
says he could have an exceptio doli He maintains the same view 
even where a son makes a similar agreement with his father's 
1 The words withiirt t are hopelessly corrupt, or some part of them. 
M. jr. 8 



114 On Pacts [BOOKH 

creditors in the lifetime of Im father ; there too, he says, the 
execjttio (foil will be allowed ; and the real truth is an exceptio 
dolt ought not to be held inadmissible even in the case of 
a slave. 10. At the present day, however, no agreement of this 
kind barn the creditors, unless they meet together and declare 
in pursuance of a general agreement what is the percentage of 
their debts that they are content to accept ; subject to this, that if 
they cannot aj^ree, then the pnetor must interpose, who will make 
a decree in accordance with the will of the majority. 

8 I'Ai'iNiANrs </fr'*/x>jWJ? 10) Majority is held to mean 
majority in respect of amount of debt, not in number of persons. 
But if the two sides an* equal in respeei of the aggregate of debt, 
then the majority in number is to be preferred. If the number of 
creditors is equal |too|, the pwtor will go by the will of that one 
among them who has precedence in station, but if there is absolute 
equality between the two Kidew in every respect, the pnctor must 
chooHO the, terms which are most humane; thin being what may be 
gathered front the rescript of the Divine Marcus. 

9 I'Airurs <o// tfu f /SV//V'/ WB) If there are a number of creditors 
who have out* common right of action, they are treated as one 
person. For inHtamie, suppose there are neveral co-creditors by 
stipulation, or wcve.ral bunkers who all gave g eredit to the debtor at 
the Hfitiii! time ; the eo-miditorn in each citse count for one, there 
b<ing only one debt. And if the contract was made with several 
guardwtw of a creditor who wan under age, they count for one, 
because they agreed on behalf of one ward. Moreover if one and 
tin* name guardian agree* on behalf of neveral wardw who claim in 
usHpcct of ono debt, it in held that he iw to be treated as one single 
emit tor, HIIICC it in difficult to HOC how one man can act the part of 
two. In fact even a man who ban wcveral dwtinct rights of action 
IH not allowed, in competing with a man who ha only one, to stand 
for more than one person. L Aggregate amount of debt may be 
CHtunuted by adding a number of different HUIHB ; for instance, one 
wan may have? owing to him minute, HUIIIH amounting altogether to 
u hundred w/w, whore* another claim** one num of fifty aurd ; in 
which CUM? we nm*t look at the amount which in made up of several 
HttntM, twcauHo Him*, when added up together into one sum, exceed 
tluj other. 2* We iwmt however reckon interest us making part 
of the HUTU. 

10 ULPJAKIJK (w f/i KdH 4) According to tho tenns of the 

of tlio Uivimi Marcun, all the creditor have to attend the 



TET. xnr] On Pacts 115 

meeting. How then if some are absent ? will those who are absent 
be bound to go by the example of those present? Again, one nice 
question raised is whether the agreement will be a bar to pre- 
ferential creditors who are absent; assuming that the agreement 
is one which is binding on absent persons as well as present* 
I remember that, before the above regulation was laid down by 
the Divine Marcus, the Divine Pius declared by rescript that the 
fiseus itself, in cases where it was not secured by hypothec, and 
preferential creditors in general, would have to be bound by the 
example of ordinary creditors; as all the above regulations must 
be held to be in force with respect to unsecured creditors. 1. If 
to the pact there be added the stipulation of a penalty, it is 
a question whether the proper course is to plead the pact by way 
of exceptio, or to sue on the stipulation. Sabinus holds that the 
person who stipulated can take either course at his pleasure ; and 
this is the better opinion ; but if he has recourse to an exceptio 
founded on the pact, it will be fair that he should give a formal 
release of the stipulation. 2. A thing very commonly said is that 
an exceptio founded on dolus is subsidiary to an exceptio founded 
on a pact; in short, as Julianus says, and a great many others 
agree, that in some cases, where an exceptio pacti cannot be had, ' 
an exceptio doli will be allowed ; for instance, if my procurator 
makes a pact, I shall hrfve a good exceptio doli, so Trebatius thinks ; 
his view being that, just as a pact made by my procurator bars an 
action by me, so too I can plead one to an action against me : 

11 PATJLUS (on the Edict 3) seeing indeed that he can give 
a good receipt to my debtor. 

12 ULPIANUS (on the Edict 4) That it does bar my action is 
certain, whether I instructed him to be a party to the pact or he 
was my procurator for all purposes ; as indeed Puteolanus tells us 
(Adsessoria 1), seeing that it is established law that [in the latter 
case] he can join issue on my behalf. 

13 PATOTTS (on the Edict 3) But if the procurator was only 
made such for the purpose of bringing an action, an agreement 
made by him does not bar his principal, just as he is not competent 
to give a receipt 1. If, on the other hand, he has been made 
"procurator on his own behalf,'* he is treated like a principal, and 
for that reason his own concluded pact must be upheld 

14 ' ULPIANTTS (on (he Edict 4) Similarly it is ascertained law 
that the pact of the magister of a company is good both for and 
against the company. 

82 



11(5 On Pact* [BOOED: 

15 PAXTUTB (on the Edirt 8) Moreover, as Julianus says, the 
pact of a guardian can be pleaded on behalf of the ward. 

16 ULMANxrs (ou t/ie Ktlirt. 4) If a pact is made by the 
purchaser of an inheritance [ with a debtor to the same] and the 
vendor of the inheritance brings an action, he can be barred by an 
/'.myrfw doll-, for, after the rescript of the Divine Pius which laid 
down that the purchaser must be allowed to bring an ntilis actio 
it is only proper that a debtor to the inheritance should have an 
f,*w/;//V> ifofi when sued by the vendor. 1. It may be added that 
if it was agreed by the owner of a thing Hold and a purchaser that 
the property purchased,-- say, a slave, should be given up, then, 
if the person who sold as owner sues the purchaser for the price, 
ho ran be met by an c 



17 I'ATLUS (t>n the /MM ,'i) If I give you ten, and agree with 
you that you shall owe me twenty, no obligation arisen for more 
than ten; no obligation run be contracted of the class formed re 
(by act) Kive to the extent* of what actually passed, 1. Some 
right>s of action are taken away by means of a pact in direct law, as 
a right of action for tHJuriii or theft. & In the cane of a pledge 
then* is a right of action founded on a pact, in virtue of jus 
hnttnrnrhntt* anil it is nullified by an wwjrfio, if the party at any 
time agrees not to sue* >'* if a man makes a pact to the effect 
that no action shall l>e brought against himself, but only against 
his heir, tho heir will not have* the fvraytfw. 4. If I make a pact 
that no action shall be brought against either me or Titius, this 
cannot be pleaded by Titiuts even if he should become my heir, as 
wieh si puot cannot be, made available by a subsequent event. 
JulinnuH given this rule with reference to si case where a fether 
made a pact to the uflfwt that no action should be brought against 
him or \m daughter, und the daughter became heiress to her 
father* fl. An agreement by pact wade with a vendor, if it is 
wade in rrm, can, HO a good tunny authorities hold, bo pleaded by 
the purchaser too; and such, PomponiuH says, IK the present law; 
but, in the opinion of KubimiH, even where such a pact in expressly 
in pwwwtiH) it eun be pleaded against the purcluiner an well [as 
ugahmt the vendor); and HaUtnuH holds that the rule iw the same 
even where the succession to the property is by donation [instead 
of Hale], 0. Where the pact in made by a man who has taken 
ptnwtiHKioti of mi inhcrittuicu to winch he han no right, then, the 
opinion held in that. If the real heir should recover the property, 
the pact eatwot l>e pleaded either by such heir or against him. 



TTF. xivj On Pacts 117 

7. Where a son or a slave makes a pact that no action shall be 
brought against the fether or the owner, [as the case may be,] 

18 GAIUS (on the provincial Edict 1) then, whether the pact 
relates to a previous contract made with such person himself or 
with his father or owner, he [, such son or slave,] 

19 PAXJLUS (on the Edict 3) acquires a good exceptio. A similar 
rule applies to a free man who is held to service as a slave in good 
faith. 1. Moreover if a fil'iusfamilicis makes a pact to the effect 
that no action shall be brought against him, this will give him 
an exceptio, and so it will to his father, if he should be sued 



20 GAIUS (on the provincial Edict 1) or de in rem verso, or if 
he should be sued as one who takes up the defence in behalf of 
Ms son, if this is what he prefers to do. 

21 PATTLUS (on the Edict 3) It can also be pleaded by the 
lather's heir as long as the son lives ; but in case of the son's death 
it cannot be pleaded either by the father or his heir, because the 
pact was wpersoncm. 1. If a slave makes a pact that no action 
shall be brought against him, it will be inoperative [, if pleaded as 
such] ; as for an exceptio doli, let us consider the point As to 
this, if the pact he made was in rem, the exceptio founded on 
a concluded pact will aroil both the owner [of the slave in question] 
and his heir, but if the pact was expressly in personam, then the 
owner still has an exceptio doli. 2. Again, a man cannot, by 
making a pact, enable someone else to plead it who is subject to 
his potestas, but he can plead it himself, according to Proculus, if 
he should be sued in the name of the person so subject, and this 
is perfectly sound, provided always that it was so understood when 
the pact was made. But, if I make a pact that you shall not sue 
Titius, and then you bring an action against me in his name, 
I cannot have an e&eeptio of pact concluded; what is not open to 
Titius himself will equally little avail for one who defends his case. 
Julianus himself says, if a father makes a pact that no action shall 
be brought against himself or his son, the better opinion is that 
foefitiusfamilias is not allowed to plead the pact by way of exceptio, 
he can only plead dolus, 3. A woman under potestas can make 
a pact that she will not sue for her dos when she comes to be sm 
juris-, 4. and a man under potestas can make a good pact with 
reference to a legacy which has been left him on a condition* 
5. Where a number of persons bare a concurrent right to ask for 
the same entire sum of money as co-creditors, or are co-debtors of 



118 On Pacts [BOOKH 

the Name Hum, the question hat* been raised as to how far an 
CMWptfa parti | founded on an agreement made by one of them] is 
available against or for the othens also. AH to this, a pact made 
m arm is available in defence of any co-debtor of whom you can 
nay that the party who made the pact had an interest in such 
co-debtor bein# five from liability. Consequently an agreement 
made by the principal debtor that he shall not be sued will be 
a defence to his sureties, 

22 1;M>IAN17S ((>/< //w? /iV//Vtf i) uiilesH the understanding was 
merely that the principal should not be sued, but the surety might 
be ; as in that ease the surety will not have the I'wwptio, 

23 PATIOS (on tht> Kdtct :) But an agreement made with the 
surety will be no defence to the principal debtor, because the surety 
has no interest in the principal debtor not being sued for the 
money* Indeed it will not be a defence even to his co-sureties. 
1* Tim defendant to an action cannot as a matter of course plead 
an agreement made |by the plaintiff 1 with another 1 , IrreHpective of 
the kind of interest he has in doing so; he can only do RO where, 
the MM/tfin being allowed him, the real benefit goes through him 
to the party with whom the agreement was made; as in the case of 
a principal promisor und those who are bound as sureties on his 
Irclwlf. 

24 THK KAMK ( w/ l*ltmtiuH X) But if the'surety guaranteed the 
debt on his own behalf, in that case the surety must be treated as 
the principal debtor, and an agreement made with him IB held to 
be tnado with a principal. 

25 TUB HAMK (<>u th<* Kitirt 3) The same rule applies to two 
co'promihow, or two bankers, if [, in the respective cases,] they are 
partners, I. A personal pact, according to l^abeo, does wot affect 
a third person, us indeed H does not even the heir of a party. 
But although a pact made with the surety cannot bo pleaded 
by thtt principal debtor, still, in most eases, HO Julianus tells us, 
the principal debtor will have an <wvi/></V; doli\ 

20 ULMANUH (<*>*> (Ac Kttirt 4) that in to say, whore the 
intention was that even the principal debtor himself should not be 
Kited. Tho wuue principle applies to co-sureties* 

27 PAt/urn (<M th* Ktlicl ) If | two] banker are partners and 
one of them makes u jwtct with a debtor, will the other be barred 
by aw fowiytw'<l NowtiuM, AtiliciwtH, and FiH>cuhiH say that the 
other will not In* burred, oven if the firnt ma<ie hi pact w rem; 

Mo. 



HT. xiv] On Pacts 119 

the only established rule being, so he says, that the other can sue 
for the whole debt. Labeo says the same; in fact one partner 
cannot, he says, even novate the obligation, though valid payment 
can be made to him ; and in the same way, where persons under 
potestas lend anything, valid repayment can be made to them, 
though they cannot novate the obligation. This is quite true, and 
the corresponding rule applies to two co-creditors by stipulation. 

1. If an agreement is made with a debtor not to sue for a given 
time, this will not protect either the debtor or his surety for any 
further time. But if the principal debtor, without naming himself, 
enters into a pact that the creditor shall not sue his surety, some 
hold that this will not protect the surety, though the principal 
debtor has an interest in its doing so; for the reason that no 
exceptio ought to be open to a surety which is not open to the 
principal debtor too. The view I have always maintained is that 
this exeeptio does protect the surety ; it would not be a case of the 
surety acquiring a right through a free person, but rather of 
provision being made for the person himself who makes the pact; 
and this seem to be in accordance with the present practice 1 * 
2, A man made a pact that he would not sue, and afterwards 
agreed that he might sue; here the first pact will be nullified by 
the second; not indeed in direct law, in the way a stipulation is 
annulled by a subsequent stipulation, where such is the intention, 
because the operation of a stipulation is a matter of law, in the 
case of an informal agreement all turns upon feet; accordingly, in 
the case referred to, the exceptio is rebutted by a replieatio. In 
accordance with this principle it may happen that the first pactfum 
will not protect the sureties. But where the pact agreed upon was 
of such a kind that it took away the right of action itself, take, for 
instance, the case of an action for injuria, the party cannot enable 1 
himself to bring an action by making a subsequent pact to the 
effect that he may bring it, because, in this case, the original right 
of action was taken away, and the subsequent pact is ineffectual, 
as a means of conferring a right of action ; an action for w/fwrite 
cannot be founded on a pact, but only on the commission of 
offensive conduct. The same thing may be said as to Twnajide 
contracts, where a pact agreed upon nullifies the whole contract, 
as in the case of a purchase; the pperation of a fresh pact is not 
to revive the old obligation, it will only serve to form a new 
contract Where however an agreement was made subsequently, 

1 For videmur etc. read wfcmtirqu* eojure uti. M. 
Of. M. 



120 On Pacts 



[BOOK n 



not in order to bike away the whole contract, but only to reduce 
itn tennw, there a second pact may operate so as to reestablish the 
original contract. Thin may very well occur in the case of an action 
for <lo& Suppone a woman were to make a pact to the effect that 
her (fax hhould be handed over to her at once, and, after that were 
t<> make a second pact that it should only be given at the time laid 
down for it by statute; in that cane the dos will thereupon revert 
to its regular legal condition. We have no right to say in such 
a case that the position with respect to dos is made worse by 
mean** of a pact; as wherever the right of action for dos reverts to 
those legal implication which were made part of its nature by 
Hlatulc, \<>r, which nature's own law gave it,j the woman's legal 
position in renpecst of dm in not made worse, it resumes its regular 
character. My munter Kcwvolu in of the same opinion on this 
point ;* One thing there is which cannot be provided by any 
pact, namely that a man shall not Ui answerable for dolm\ though 
indeed if a man agreen by pact that he will not bring an action on 
(h'/MMitMttii the direct wmwequence KconiH to be that he agrees not 
to bring an nd.iou for d<thw\ no doubt nueh a pact as this can be 
pleaded. -I. Pacts which en tale a position contrary to sound 
morals ought not to bus olwerved ; aw, for inntance, where I agree 
not to sue you for theft or injurm, if you should commit such 
oftVneetf; l>eeaUH<* it IH deniruhle that people should go in fear of 
tlw penalties attached to theft awl //ywrAu; but such a pact may 
very well be made after the offence is committed. Similarly a man 
cannot make a pact that he will not sue out an Interdict nnde vi, 
assuming that it touches some matter of state concern. To sum 
up the matter, where the agreement made by pact IB outside the 
HCOJH* of private rights and obligation^ it cannot be uphold; as 
euro must above all things Iw taken that an agreement made as to 
one matter or with otto person shall not produce an ill-effect in 
another matter or in the ease of another person. ! 5. If you owe 
me tew, uwl I agree with you that I will forbear to sue you for 
twenty, tho law is that you have a good wMptlo of pactwm 
wmwHttiM or of ifalu* as to tea* Again, if you owe me twenty, 
and I agrco not to KUO you for ten, the result of your meeting my 
demand with an /arw/rffo will be that I am only at liberty to 
require you to \my the odd ten. 0. But if I ntipulatod for ton or 
HtichuH, wid ninko a ptct with you a* to ton, after which I sue 
you for HtiehuH or tw, you can pletul *fwchm conventum,' which 
will bar my whole nuit; for juat aw payment or an action or 
1 0, and 7 ttro ftl>rd, ami wmeh of the kftihi to harbuwmn. 



rar. xrr] On Pacts 121 

a formal release applying to one thing would discharge the whole 
obligation, so too, if there is an agreement interposed by pact 
not to sue for one thing, the whole obligation is got rid of. 
But if our agreement was understood to be that I should not have 
ten given me, but Stichus, then I have a good right of action for 
Stichus, and there is no exceptio that can bar me. A similar rule 
holds as to an agreement not to sue for Stichus. 7. But if you are 
bound to give me, generally, a slave, and I thereupon agree that 
I will not sue for Stichus, then, if I sue for Stichus, I may be met 
with an exceptio of pact, but if I sue for some other slave, there is 
no objection to the action. 8. Again, if I agree not to bring 
a hereditat'is petitio against you, and then I sue for specific things 
as heir, you can have an exceptio of pactum conventum drawn to 
suit your case, founded on the intention 1 of the agreement in 
question, just as if I were to agree not to sue for a piece of land, 
and I were to sue for the usufruct in it, or not to sue for a ship or 
a building, and I sued for particular distinct portions of them, after 
the whole had been broken up; provided always there were no 
express understanding to a different effect. 9. Where a formal 
release given is void, it is held to amount to a tacit agreement to 
the effect that no action shall be brought. 1 0. A slave who is part 
of an inheritance cannot make a valid pact on the express behalf 
of the person who eventually enters as heir, as that person is not 
yet owner of the slave ; but if the pact concluded is made in rem, 
the heir can acquire the benefit of it. 

28 GAIUS (on the provincial Edwt 1) Pacts which are con- 
cluded in contravention of the rules of the civil law are not held 
valid ; as/ for instance, where a ward agrees without his guardian's 
concurrence that he will not sue his debtor, or that he will not sue 
for a given time, say five years: in fact, he can not even give 
a valid receipt for money due, except with the concurrence of hit 
guardian. On the other hand if a ward agrees that something 
which he owes should not be sued for, the pact so concluded ii 
upheld, because it is open to him to improve his position evei 
without the concurrence of his guardian. 1. If the wvrator o 
a lunatic or prodigal makes a pact that no action shall be brough 
against such lunatic or prodigal, it is more than equitable tha 
such an agreement of the curator should be supported ; but th 
converse does not hold. 2. If a son under potestas, or a slav< 
makes a pact that he will not himself bring an action, the pact S 

1 For pactwn read acfam* Of. M. 



122 On Pacts [BOOKH 

inoperative. But if either of the last-named makes a pact in rem, 
that h, that the money iu question shall not be sued for, this pact 
will be held good in bar of an action by the father or the owner, 
provided the non or the slave had free management of his peculium, 
and the mutter about which he made the pact concerns the 
7/WW//K7/& Kven then there is some further qualification; for, 
weeing that it is quite true, as Julianus holds, that however much 
a slave may have tho management of his pewdium allowed him, 
still he ha* no right to give it away, the consequence is that if he 
deliberately makes a gratuitous pact that the money shall not be 
riiied for, the pact HO concluded ought not to be upheld; should he 
however as a consideration for such an agreement receive something 
which is worth as much as what he gives, or possibly more, then 
the pact must be upheld. 

29 UhMANim (<w t/w Kilirt 4) Again, if a slave lends his owner's 
money, then, according to Oelsus, any pact which he made at the 
time of the loan is valid. 



30 <JAIUH (o// Ih? ;;rwvww/ AWfV/! I) Still, as to a filimj *< 
litti*, we may well ask whether it is not sometimes the case that, 
even where" he agrees that h will himself forbear to sue, the 
agreement in valid ; as, in some eusos, a filuwfamitia* has a right 
of action ; for iiiHtanco, lie has one for //ywv>. However, as the 
fue-l in that where un injuviii is committed on a son, the father 
himself has a right of action, there is no reasonable doubt that, 
if the father wishes to sue, he will not be barred by the son's 
tttfftwmunt. 1* Where a man stipulated with a slave for the pay- 
nutnt of a sum of money which Tifcius owed him, the question has 
been asked whether, supposing he then sues Titius for the money, 
IUH action am be and ought to IK* barred by an t'twepth of paetwm 
Mumutuw, on the ground that he must bo held to have made a 
pact that he would not sue TitiuH. Juliantw thinks there would be 
no bar to the stipulator'n action, except where he hits a good right 
of action <fr //mtf/V; agJiinst tho owner of the slave, in other words, 
whew the slave had sufficient groun<l for intervening, for example, 
becuuHU ho (the slave) ow<I Titius the same sum; but if the nlave 
only intervened an surely, in which ewe no action tie vwulio would 
IN* allowed, them the creditor >uht not to be prevented from suing 
TlthiH ; and it in equally tnus hi the opinion of Julianua, that he 
ought by no mean* to l>c prevented if he took the lavo for a free 
penum. & If I Htipulate with you, Hubject to BOIUC condition, to 
the effect that you will pay me a HUM which Titiua owes me uncon- 



TTT. xiv] On Pacts 123 

ditionally, is it the case, supposing the condition fails, that, if I sue 
Titius, I may and ought to be met by an exceptio of pactum con- 
ventumt The better opinion is that no such exceptio can be used. 

31 ULPIANTTS (on the Edict of the Gurule ^Ediles 1) It is per- 
fectly admissible to make an agreement not to take advantage of 
the Edict of the JEdiles, whether the agreement should be made in 
the course of contracting the sale or subsequently. 

32 PATJLTJS (on Plautiw 3) With regard to the rule above 
mentioned, that, if a pact not to sue is made with the principal 
debtor, this gives a good exc&ptio to the surety as well; this rule 
was adopted for the debtor's own sake, to prevent his being sued 
by the surety on the mandatum, consequently, if no action on 
mwdatum was open, if, for example, the surety guaranteed the 
debt by way of bounty, the proper view to take is that the surety 
will not have the exceptio. 

33 CBLSUS (Digest 1) A man promised a dos on behalf of 
a woman who was his granddaughter through his son, and made 
a pact that no action should be brought to recover the dos 
against either himself or Ms son. If after that the action is 
brought against one who is heir to him along with his son, such 
coheir cannot protect himself by an esvceptto founded on the 
agreement, but the son can very well avail himself of it ; since 
the law allows a man to take thought for his heir, and there is 
nothing to prevent his providing for one of his [expectant] heirs 
in particular, on the chance of his becoming heir, and taking no 
thought for the others. 

34 MoDBSTiJsrcrs (Rules 5) It is the opinion of Julianus that 
the legal tie of agnation cannot be renounced by a pact, any more 
than a man can be allowed to say that he does not wish to be 
a SWMS heres. 

36 THE SAME (Responsa 2) Two brothers and a sister, Titius, 
Msevius and Seia, divided amongst them an inheritance which 
they shared in common, and executed instruments by which 
they declared that they had made a partition of their maternal 
inheritance, moreover they gave mutual assurances that nothing 
remained undivided Afterwards, two of them, that is Msevius 
and Seia, who had been absent at the time of their mother's 
death, ascertained that a sum of money in gold coins had been 
abstracted by their brother, of which sum no mention was made 
hi the instrument of partition. I wish to know whether, the 



124 On, Pacts 



[BOOK n 



agreement to divide being made, the brother and sister have 
a good right of action against their brother for division of the 
money abstracted Modentinus's answer was: if, on suing for 
a portion of the money which is alleged to have been abstracted 
by Titian, the two plaintiffs should be met with an escceptio 
founded on a pact in general terms, the fact being that they 
made a composition including the matter as to which Titius 
committed the fraud, without being aware of the truth, there 
would be a good replication of 



36 JPiWHTU's ( Kt>i#f/M 5) You being in possession of my estate, 
you and 1 agreed that you should deliver possession thereof to 
AttiuH ; in thin case, if I HUC you to recover the property, my 
action cannot IKS barred by an Mwptfa founded on the agree- 
ment, unions either you have already delivered possession, or else 
you und I made the agreement for your benefit and it is not your 
fault that you have not made the delivery. 



37 PA i* wn rs J UST r s < on ///w r w/ wwrtoHmte 2 ) The Emperors 
Antoninus and Verun laid down by rescript that a debtor to a 
municipality could not be excused payment by the curator, and 
that the releune made to certain inhabitants of Philippi must be 
mended. 

38 I'Ai'iNiANtiH Jut'*twH* *2) The law of the State cannot be 
varied by the agreewentH of private persons. 

30 TIIK HAMK (tywxtfan* ft) The old lawyer** hold that an 
agreement olwcurcly expressed or of doubtful meaning must be 
interpreted aguiimt a vendor or tfwttftr, such persons having it in 
their power to net down the termn of the contract more clearly. 

40 THK SAMK {JHMjHMwt 1) A pact in these words, " i declare 
that you arc not bound" need not IK* intended to be in pwwmom, 
and, being general, it will apply perfectly well between the respec- 
tive heirn of the original parties, in <iane of legal proceedings. 
1. A man who Imn lodged an appeal agrees that if a sum of 
money which ho IWH promised to pay by way of compounding 
an action in not i>uid by a given day, he will comply with the 
original judgment; the judge of appeal will hereupon, without 
diHcuHwing any other point on the main question, proceed upon 
the above m a lawful Hgroewent, junt aft if the defendant had 
oonfoHHoci hiH liability. & The coheirs of a deceased person having 
divided the aneti* and liabilities the different creditors accepted 
interottt from the renpective colieirn on the footing of the arrange- 



TIT. XIY] On Pacts 125 

meat, for the whole of their debts, though no formal readjustment 
of liability had been made : this will not interfere with the rights 
of action which every creditor had previously against all the heirs 
in proportion to the respective shares of the latter in the inherit- 
ance, so long as such heirs do not proceed to offer to the creditors 
assigned to them respectively the .whole of their debts in due 
execution of the arrangement made. 3. A father who had promised 
a dos made a pact to the effect that, after his own death, if his 
daughter should die without children, the marriage having lasted 
up to that time, a certain portion of the dos should revert to his 
brother and heir. If the father (socer) should have other children 
subsequently, and appoint them heirs by his testament, the above 
agreement will give them a good exceptio doli, as the intention 
of the contracting parties was to provide for the heirs, and it is 
clear that whereas the father, in expressing [what he considered] 
his last wishes, referred to his brother, he only did so at a time 
when he had no other children [than his daughter]. 

41 THE SAME (Response* 11) "If before such a day you paj 
me such a portion of your debt, I will give you a formal release 
for the rest, and discharge you from your liability/' The above 
gives no ground of action ; still it is well established that the 
debtor has a good e&ceptio pacti. 

42 THE SAME (Rwponsa 17) An agreement was made between 
debtor and creditor that the creditor should not take on himsel 
the burden of paying the tax (tnbutum) due on land which h< 
held as security for the debt, but that that duty should fall 01 
the debtor* I gave the opinion that this agreement was no 
binding so far as the jfiscus was concerned, as it was not allow 
able that a regulation of revenue law should be stultified b; 
agreements between private persons. 

43 PATTLUS (Questions 5) We know, in the case of a sale, wha 
the law requires of the vendor on the one hand and the purchase 
on the other; but if the parties chose to vary the terms in an 
respect when they made the contract, this must be maintained. 

44 SoamvofcA (Besponsa 5) A boy under age being on the poir 
of being made to decline his father's inheritance, his guardia 
settled with majority of the creditors that they should accei 
a percentage on their debts, and the curators made the sano 
arrangement with others. The question is this: if the guardia 
is himself a creditor of the father, is he only allowed to retai 
for his own debt an equally small portion? My answer was thi 



126 On Pacts [BOOK n 

if the guardian brought the other creditors down to a percentage 
on their debtn, he waw bound to put up with a similar reduction 



45 HBKMOUKNIAWTK {E/ntMM* of fw 2) An agreement for 
partition, IUI!CKK it take* formal effect by a delivery or a stipula- 
tion, will, being a bare pact, afford neither party ground for an 
action, 



46 TKYPHONIXCK ( Ditywttitwm ii) An agreement made between 
heir and legatee to the effect that the former need not give security 
in recognised to l>e valid, as there is an enactment of the Divine 
Maim* enrolled in the Sementria to the effect that the will of 
the deeesised shall be binding on this point aw well as any other. 
Moreover, when* the heir han been released by the legatee by 
wraim of an agreement to that effeet from the duty of giving 
wecurity, the hitter eannot be allowed to change his mind and 
revoke the release, UH it is quite open to a man to alter for the 
wowe hiH weans of enforcing hin rightw at law or his expectation 
of real wing hi.s elaintH ut KOIIIC future time. 

47 S<M;VOIA i/)if/i'Hf I> A pureJiaHer of land gave an under- 
taking that he would pay twenty, and promwed the name by 
stipulation ; after HUH the vendor gave an undertaking to the 
efleet that he had agreed that he would be content with thirteen, 
and that ho Hhouhl receive payment of that Hum within a specified 
time, The debtor, on Ijeing micd for the latter amount, agreed 
that, if it were not paid within a further specified time, he should 
IKJ liable to Ie, nued on hin original undertaking. The question was 
wkwi whether, ou failure* on the part of the debtor to fulfil the 
Inter 1 agreement, the whole debt could IKJ demanded in pursuance 
of the original undertaking- I annwored that, taking the facts as 
ntated, it could. K Luehw Titian, having a complicated account 
with UaiiiH StshiH, a moneychanger (mmtdarim), comprising a 
mimtor of n*ceiptrt and jiymentH, made Heiun hin debtor, and the 
latter liamltrd him a written document in the following terms: 
11 VVbcn^aH you hav had u moneychunge.r'n jiccount (ratw mnsw) 
with me, I 'have in my handn at thin time, an the balance resulting 
from a great number of LrunxactionM included in the fcwid account, 
three hundred and eighty -nix |wm| f and tlio proper interest 
thereon. AH for the MUW of ce?*m which 1 hold to your ^credit 
without cxpr<5HH agreement, I engage to repay it. If any instru- 
ment iHHued, that IH> written, by y<;u IK remaining in my hands for 

<Jf. M, 



TIT. xrv] On Pacts 127 

whatever reason, whatever the amount may be, it is to be held 
void and treated as cancelled." The following question arose, 
Some time before this instrument was made Lucius Titius had 
requested Seius the moneychanger to pay the former's patron the 
sum of three hundred ; must we say that, considering the terms 
of the above letter, by which all written engagements connected 
with whatever contract were to be held void and treated as 
cancelled, neither Seius nor his sons can be sued in respect 
of the last-mentioned matter? I answered that if the account 
mentioned only included the receipts and payments made, all 
other debts remained as they were. 

48 GAIUS (on the Twelve Tables 3) It is perfectly clear that 
any pact that is made on a delivery of property is valid. 

49 ULPIANTTS (on Sabinus 36) If a man lends money and 
makes a pact that he will only sue the debtor for payment to 
the extent of what the latter is able to pay, is this a valid 
agreement? The better opinion is that it is; there is nothing 
dishonest in a man desiring to be sued for payment to such extent 
only as his means allow, 

60 THE SAME (on Sabinus 42) On a contract of deposit^ or 
a loan for use, or a locatio y or any other similar contract, I should 
say that there is nothing inadmissible in an agreement such as the 
following: "You must not make my slave a thief or a runaway "; 
in other words, "You must not incite him to become a thief or 
a runaway, you must not be so negligent in providing for him as 
to cause him to take to stealing." Just as there may be an action 
brought for corrupting a slave, so too, on the same principle, there 
may be such an agreement as the above, which aims at preventing 
the corruption of slaves. 

51 THE SAME (on the Edict 26) If you believe [erroneously] 
that you are bound in pursuance of a legacy to agree with 
a debtor that you will not sue him, and accordingly he enters 
into such a pact, the debtor will not be released in strict law, 
nor can he bar your action by pleading the agreement by way 
of exceptio, so Celsus informs us (lib. xx). 1. The same writer 
adds the following: If you believe erroneously that you have 
to pay a legacy to Titius, and you instruct your debtor to pay 
it, and the debtor who is already a creditor of Titius, agrees 
with him that he will not sue him, this will not put an end 
to your right of action against your debtor, nor to his against 
his debtor. 



128 On Pacts [BOOK n 

52 THE SAME (Opiniom 1) A letter by which a man pledged 
himself that nueh a one wan coheir jointly with himself will not 
give the hitter any right of fawdifatifi petitio against persons 
who are in poKHewnion of assets of the deceased. 1. Land being 
pledged as security for debt, an agreement is made between the 
debtor and a pernon who purchased from the pledgee, professing 
to do HO on the debtor's behalf, that the profits already received 
should ho set oil* against what wan owing, and the balance 
Hhould be paid, und thereupon the land should be restored to 
the debtor; in this case, |on the death of the purchaser,] his 
heir is bound to observe? the agreement entered into by the 
demised. 2. If an agreement is made that any sums already 
paid by a pledge of land in discharge of the land tax (tributum) 
duo from the estate; subject to the pledge should be recoverable 
from the pledgor (/frfi/Von, and future sums payable out of the 
name laud should be paid by such pledgor, this IH a lawful 
agreement and must be upheld accordingly. ;*. Certain persons 
threatening to bring the plaint for an inoHiciotiK testament made 
by their father, the heir agreed that they Hhould receive a specified 
amount as long a^ he lived. A claim was made to have this pact 
treated as making a perpetual obligation, but it was laid down by 
rescript that by no law or principle of justice could such a demand 
be entertained, 

53 TIIM HAMK<f//j//uV;wf 4} There is no harm in advancing to 
u person engaged in litigation the expense of his action; but an 
agreement to the effect that instead of the amount expended for 
the purpose of the action Mng returned with lawful interest, the 
half of whatever I* gained by the suit shall bo handed over is an 
unlawful Imrguin. 



84 Sn/KVoriA, (not tu Jufttnt niywt, 2%) If I had a right 
to usk for SticlutH and I agree not to sue for him, it cannot be 
naid that my debtor is in default; and, if Htichus dies, I do not 
think tlut defendant is liable, if he wan not in default Inrfbre the 
pact wan mude, 



58 JtiMANirK ( ItiffMt ttfi) If a debtor haw a usufruct in a slave, 
und tbo nlave who in the nubjcct thereof enters into a pact to the 
effect that the debtor shall not be mtcd, by this pact he improves 
the debtor's position. Again, if the creditor had the usufruct in 
a nluvo, ami made a pact that he would not HUC, but the slave in 
whom lie had the usufruct thereupon agreed that the creditor 



TIT. xiv] On Pcwta 129 

might sue, the creditor might perfectly well claim to be allowed to 
sue in virtue of the pact interposed by the slave. 

56 THE SAME (on Minivivs 6) If it is agreed that a landlord 
shall forbear to bring some action against a tenant, and the agree- 
ment is made on sufficient grounds, there is nothing in this to 
prevent the tenant from bringing an action against the landlord. 

67 FLORENTINES (Institutions 8) A man who accepts interest 
from his debtor in advance is held to make a tacit pact that he 
will not sue for the principal before the time by which the interest 
would have been payable. 1. If a pact is expressed in such terms 
that it is in rem with respect to one party and is in personam 
with respect to the other, as, for example, where the terms are 
that I will not sue or [and?] that you shall not be sued, then my heir 
will have a good right of action against all of you, (i.e. you and 
your heirs,) and all of us, (Le. I and my heirs,) will have a good 
right of action against your heir. 

58 NERATIUS (Pwchwmts 3) In cases of purchase and sale, 
letting and hiring, and any similar contracts, it is undisputed that,, 
so long as nothing further is done, the parties who are bound to 
one another can by mutual agreement withdraw from the contract 
Aristo's opinion went further: if, he said, I have done for you all 
that I was bound to do as vendor, and thereupon, the purchase- 
money being still owing, you and I agree that you shall restore to 
me everything connected with the thing sold which you received 
from me, and that you shall not pay the purchase-money, and you 
accordingly restore everything, you will thereupon cease to owe 
me the money, because, according to the received view as to 
bona fides, which affords the guiding principle in all such cases, 
the agreement in question is a bona fide convention. It would 
make no difference whether, before anything were done in pur- 
suance of our respective obligations, we agreed to abandon the 
contract or you first restored to its original position everything 
that I had given you, and then we agreed that you should not 
give me anything in pursuance of the contract. One thing there 
is which certainly cannot be effected by any agreement concluded 
with the object of making void a prevfbtis arrangement; you 
cannot be compelled in that way to give' the back what I hate 
once given you; were this the case, our oj>erations would consist 
not so much in getting rid of dtur 'old contract as in 
between us fresh obHgatitos of some kind. * 

M. J. 9 



130 On Pacts [BOOKH 

B9 PAUM T H (Knln 3; Wherever a man can acquire any right 
through a stipulation made by another, the law is that his position 
can he improved hy pacts agreed on by tlie agency of the same 
poison. 

60 PAPWirs JrwTts 'hniwrwl cunrfmeHte 8) The Emperor 
Antoninus luid down in a rescript to Avidius (Jaasdus that, if the 
creditor of a deeesiM'd person are willing to take a percentage on 
their debt* out of llu 1 estate, though it were from an heir who is 
a sinuitfer, lh<we akin to the deceased should be first considered, 
if Hiih-tantial persons. 

61 POMPOMS />// tiuhhtiM i); No man can by means of a pact 
deprive hii^elf of the right to eoiiHecrate (tMicaffe) his own 
jrrnund, or to bury a dead body on his own land, or to dispose 
of his e,*late without IIH neighbour's wmsent. 

62 I'Yuirs A,vnn\M's on ////* AW/W 1, A debtor, after first 
agreeing that he A\\\\\ nut b<* ued for the debt, the renult of which 
part i< that hi?. >uri'fy i^ protected an well, makos another agree- 
ment that he may be Mted: the queKtion has been rained whether 
the *urel j thereupon IO^PX the benefit of the former agreement The 
b<*H**r opinion in flint when the hurc^.y iuts once acquired a right 
loan *.m/rf/i fimnded on a ju1 it eunuot after that be wrested 
from hint utfuinnt \ii* will. 



XV. 

OS <!OMrKOMIHIN4 AN 

1 1'U'UMVH <nt thv Kit iff 50, When a man compromises 
u wine truM#i{/ft*i the *ubjot of eonipromine in Home quention at 
iHHiM* whieh he treat* * cloublfiil, aitd the roHtilt of the trial as 
in. the nine not \*w$ <wrtihnlcd. But one who comes to 
( iwivitm* ivw up Kniluitirtmly and by way of bounty 
tiifitf dfntlwrl and niMlJ|mt<*fl 

TIIK HAMK frm th* AW/irf 741 Kor a man to agree to a com- 
) tluw mwl not )w uny A<iuiHau Htipulation added, it is 
tlutft tortiw am agrinui upon by way of pad 
3 HtMWOUt (/%/^ H The KmperotH Antonbmk and Verus 
the folIowiiiK rm;ript: "It in t^yond queBtiou that pn^te 
cannot impair the righto of thone who arc not parties 



TIT. xv] On Compromising and Compounding 131 

to them. Consequently whatever compromise has been made 
between the heir and the mother of the deceased, the testament 
cannot be held to be rescinded by it, and legatees and manumitted 
slaves have not lost their rights of action ; so that whatever they 
wish to sue for in pursuance of the testament, they must bring 
their action against the person who is named therein; who, when 
he compromised the question of inheritance, either took measures 
for his own protection in respect of the burdens which fall on the 
heir, or, if he did not, has no right to allow his own neglect to 
prejudice other persons.*' 1. A compromise being made [between 
the above parties] in respect Qf&fidd commis&um [made in favour 
of the mother], and afterwards the "codicils" themselves being 
found : I desire to ask, supposing the mother of the deceased has 
received less in pursuance of the compromise than was properly 
due to her, whether she has a right to get the difference in virtue 
of the fidei cowmissum. The answer was Yes. 2. A secured 
creditor having sold the property pledged [and died], the debtor 
agreed with one Msavius, who gave himself out as the statutable 
heir of the creditor, to terms of composition very advantageous 
to the latter; after which, the creditor's testament being produced, 
it turned out that his real heir was Septicius. Hereupon these 
questions were asked: if the 'debtor sues Septicius in an action 
on the pignus, can the latter have an exc&ptio founded on the 
composition which the plaintiff [debtor] made with Msevius, who 
was not really heir under the testament? 1 and will Septicius 
have a condictio to recover from Msevius the money which the 
debtor paid Msevius under the impression that he was heir, on 
the ground that Msevius received it on the pretence of being 
heir? The opinion given was that on the above statement of 
fact the answer was No [to both questions]; as Septicius was 
not himself a party to the compromise with the debtor, and 
when Maevius received the money he was not acting on behalf of 
Septicius. 

4 ULPIAKUS (on Sabinus 46) The Aquiliatx stipulation abso- 
lutely supersedes and annuls all preceding obligations, and it is 
itself annulled by the acceptttatio-, this is the present practice. 
Consequently even bequests which are made on a condition come 
within the scope of the Aquilian stipulation. 

5 PAPINIANUS (Definition* 1) - When an Aquilian stipulation 
is employed, given, that is, on agreement, any actions at law which 

1 For tenqpore read testawunfa Of. M. 

92 



132 On Compromising and Compounding [BOOK n 

the parties did not have in their minds remain unaffected. Those 
learned in the law have adopted a method of interpretation which 
will defeat any release made insidiously. 

GAITJS (on the provincial Edict 17) Where disputes arise 
out of a testament there can be no compromise nor any inquiry 
into the facts made without inspecting and taking note of the 
words of the testament itself. 

ULPIANTJS (Disputations 7) A compromise is valid even 
after judgment if an appeal has been made or can still be 
made. 1. A surety was sued and judgment given against him; 
after which the principal debtor compromised matters with the 
successful plaintiff. The question is asked whether the compro- 
mise is valid. I should say that it is, and that every previous 
ground of claim is taken away as againwt either the principal 
debtor or the surety. If however the surety made the compro- 
mise himself after judgment was pronounced against him, then, 
although the compromise does not annul the judgment, Htill the 
obligation incurred under the judgment ought to be considered as 
discharged to the extent of anything that was given in purnuancc 
of the compromise. 2. So true is it that whatever was given, 
though not to be taken in discharge of the compromise, in still 
so much off the judgment debt, that on the faith of thin construc- 
tion it has been held, and indeed embodied in a rescript, in a cane 
where a compromise wan made, without the leave of the prsotor, 
of an obligation to furnish an alimentary provision, that what 
was given in pursuance of the compromise was a good j>art 
performance of the duty to furnish the provision; the whole 
result being that whatever might still be owing by way of nuch 
provision would have to be supplied, but credit must bo allowed 
for what was given already, 

THE SAME (on all the CowrtB 5) It being observable that 
persons for whom an alimentary provision had been made by 
testament were very ready to compound their claims, and wore 
satisfied to take a small sum in immediate payment, the Divine 
Marcus provided, in an address which he recited in the Senate, 
that no composition as to an alimentary provision should bo 
upheld, except where made on the pnator's authority. Accord- 
ingly the practice is for the prsotor to interpose and decide, a& 
between the parties to the agreement, whether any composition 
ought to be admitted, and, if so, what shall be the term* of it. 
1. Whether the subject of the bequest is a provision for lodging, 



TIT. xv j On Compromising and Compounding 133 

or drew, or for maintenance charged on land, in all cases the 
same pnetor holds an inquiry as to the composition to be made. 
2. The Kmperor H address deals with maintenance left by testament 
or by codicil*, whether the codicil* are supplementary to a testa- 
ment or there wtu* no testament The same rule holds equally where 
the provision was made by a donatio mortis causa, or is a charge 
on a perHon to whom a donatio mortis causa was made: and 
where the provision in made by way of fulfilling a condition, the 
rule is still the name. No doubt, where the gift of maintenance 
iw unconnected with the death of the giver, the composition 
may be made without the leave of the praetor. 3. Accordingly, 
whether the gift provide* for monthly, daily or annual payment, 
the Kmperor'a addresw applies; and the same is the case where 
the provinion in not to be perpetual, but for a specified number 
of yearn. 4. If a capital sum of money is left a man by testa- 
ment, for him to live on the interest and restore the whole sum 
at hin death, the addrews still applies, although it cannot be held 
that such a bequest is one which provides for annual payments. 
6. However, if a sum of money or some specific thing should be 
left to Titius, on the understanding that he is to provide Seius 
with maintenance out of it, the better opinion is that Titius can 
compound for it, as the provision for Seius is not reduced by 
Titius's composition. The same holds too if the legatee 1 is charged 
with maintenance by way of fldei eommisswm. 6. The kind of 
composition which the Emperor's address is directed against is 
one which is made in order to enable a man to spend the present 
value of a provision given him. How would it be then if he were 
to make an arrangement, without the pr&tor's authority, to the 
effect that whereas a provision was left him, payable yearly, he 
should receive it monthly, or, where it was payable monthly, he 
should receive it daily? or how if he had a right to 2 receive it 
at the end of the year, and he arranged that he should have it at 
the beginning ? I should say that any such agreement is valid, be- 
cause, in the case of arrangements such as mentioned, the person 
to be provided for improves his position; what the Emperors 
address aimed at preventing was compositions being made so as 
to cut short alimentary provisions. 7. It *s a matter of indif- 
ference whether the beneficiaries in these cases are freedmen or 
freeborn, also whether they have an independent competency or 
not a The points which the decree requires to be investigated 
in the prartor's court are these: first, what is the motive fot 
i Before leffotario ins, 0. 01 M. * l>*i ** M - 



134 On Compromising and Compounding [BOOK n 

making the composition, secondly, what is the scale of payment, 
thirdly, what are the personal characters of the parties. 9. As to 
the motive, the question to inquire into is what reason there is 
for making a composition at all; the prsetor will not listen to 
one who desires to compound without good ground. The reasons 
generally given are very much as follows: that the heir lives in 
one place and the beneficiary in another ; or that one of the two 
intends to change his place of abode ; that there is some urgent 
reason for having a capital sum of money in hand ; or that 
a provision for maintenance lias been charged on several heirs, 
and it is a troublesome thing to have to apply for a number of 
small sums of money to different persons; or whatever other 
reason there may be among the many which eoiiHtantly occur 
for inducing the praetor to allow a composition to be made. 
10. The amount of money which is the stibjeet of the arrange- 
ment has also to be considered, in short, the stun for which the 
composition in to be made: thin very question of amount may 
help to estimate the good faith of the transaction. The amount 
should be fixed according to the age of the party who accepts 
the composition and the state of his health, it is obvious that the 
terms would vary according us the party were a boy, or a young 
man, or an old man ; as of course a provision for maintenance 
comes to an end on death. 11. Regard must also be had to the 
character of the parties, that is to say, it must be considered what 
are the habits of life of the persons to whom the provision is left, 
whether, for example, they are persons who are prudent in their 
habits, and can maintain themselves independently, or are of a 
lower type, and have to depend on the provision- With regard 
to the portion ou whom the provision is charged, the points to 
look at are these: what are las means, what is his way of life, 
what reputation has he? These will make plain whether ho ban 
any wish to defraud the person with whom he proposes to make 
the composition* 12. When a man makes a composition about an 
alimentary provision, he will not be held to be therein making one 
about a provision for lodging or for dresB, as the Divine Marcus 
had an eye to compositions being made in respect of these matter* 
too, independently of the case first mentioned. 1ft. It may IK* 
added that where a man enters into a composition on the subject 
of alimony, he will not be bound to proceed to do the name with 
reference to a provision for lodgings or anything else against hin 
will; so that he can either make the composition as to all these 
matters at once or as to one or more in particular, 14. Bhoe- 



TIT. xv] On Compromising and Compounding 135 

money too can only be compounded for in pursuance of the praetor's 
judgment. 15. If land is left to one or more persons by way of 
provision, and they wish to sell it, a decision of the praetor must 
be had as to the sale and the terms of the composition connected 
with it Again, if land is left to several persons by way of 
alimentary provision, and they make a composition among them- 
selves, the composition cannot be upheld if made without the 
leave of the pnotor. The same holds if landed security is given 
for a provision, as, even where a mortgage is made with this 
object, tho property cannot be released without application to 
the pnetor. 10. It is more than plain that whether the compo- 
Hitkm relates to the whole of the provision or to a part of it 
only, the decision of the praetor is required for it. 17. If, when 
application in made to the prsotor, he allows the composition to 
be made without any inquiry into the circumstances, the arrange- 
ment will be null and void ; the affair was put into the pnetor's 
hands for him to inquire into it, not for him to neglect it or give 
it away. Kven if he failft to extend his inquiry to every point 
which the Emperor's addresn enjoins, viz. the motive, the amount 
proponed and the character of the parties, then, although he 
should inquire into some points, still the rule is that the arrange- 
ment i void, 18, Moreover, in this matter, the prcem of the 
province, or the prcotor, is not at liberty to delegate his authority. 
19, A composition on the subject of an alimentary provision can 
be made before the Imperial procurator; for instance, where the 
provfeion in claimed from tho Fiscus ; consequently a composition 
can be equally nettled before the Pnxrfectus yErarii. 20. If an 
action i lauding relative to a provision, but the action is com- 
prowled, the compromise cannot be held good without application 
to the prater, because otherwise the Emperor's address might be 
evaded; as it would be possible for a feigned action to be brought, 
in order that a composition might be made without the pnetor's 
leave. 31, Should it happen that an alimentary provision is left 
to a person, and, in addition to this, a legacy to be paid at once, 
and then a composition is made without the sanction of the 
pnxstor, any money already paid will be first appropriated to the 
legacy which waa to be payable at once, and anything over and 
above to the provision. 2& If a man compounds m respect of 
a provision, without the pnetor's leave, anything paid [in pursu- 
ance of the composition] will go in discharge of arrears of the 
provision. It matters not whether the amount of such arrears 
was exactly what was paid or less or more; even if it was less, 



136 On Compromising and Compounding [BOOK u 

still what was paid must be appropriated to the arrears of the 
provision. It is true that if the party who compounded alxmt 
a provision which he was to receive is the richer by the payment 
made, it will be perfectly fair that an action should be allowed 
against him to recover the amount by which he is the richer, *is 
he has no right to be enriched by another man's loss. 2S. If 
a fixed annual allowance should be left to some one in a superior 
(hotwstior) position, say, for instance, there is a gift of a yearly 
pension, or a usufruct, then a composition may be made without 
application to the prsetor ; but if a small usufruct is left by way 
of maintenance, I should hold that in such a case a composition 
made without the pnetor's sanction is null and void. 2 J. If what 
is left a man an a provision is not money, but corn or oil or any 
other necessary of life, he is not at liberty to compound in ruspeet 
of them, whether the allowance was annual or monthly. If how- 
ever he makes an arrangement without the pnotor's leave to the 
effect that, instead of some provision such as above mentioned, 
he should receive a payment in money every year or every month, 
and, iii so doing, he does not alter the day or the amount, but only 
the nature of the provision; or should he, to take the converse 
cane, agree to take his provision in kind, where it wan left him 
in money, or nay he arranges to have wine instead of oil, or oil 
instead of wine, and so on, or he changes the place, HO as to take 
the provision in a municipal town or u province, when it was left 
him in Rome, or vice versa; or he changes the person chargeable, 
so as to take at the hands of one only what he had a right to at 
the hands of several, or to accept the liability of one perwon in the 
place of that of another; in all these canes the pnetor must 
exercise his judgment, and the question ought to be considered 
from the point of view of the interest of the beneficiary, 8 A. If 
a fixed annual sum is left for lodging, and an arrangement is made 
without the praetor's leave to the effect that actual lodging shall 
be given, this is a valid composition, as the party gets the iicnefit 
of a lodging, though it is true that the lodging 1 is liable to !K$ 
lost by collapse or fire* Again, in the converse case, where the 
parties agree that, instead of a lodging which was left, a fixed 
sum shall be given, the arrangement is good, even without the 
pnetor's leave, 

9 THE SAME (Opinions 1) A man sued his guardians in 
respect of such liability as they had incurred in the eourwe of 

1 Del. transactio. M. 



xv] On Compromising <md Compounding 137 

their administration as guardians to himself alone, and compro- 
mised the action. If after that he brings a similar action as 
representative of his brother, whose heir he is, against the same 
defendants, they cannot bar it by pleading the compromise made 
(jNvwyrfptione traiimctionis factce). 1. Wherever a compromise 
IB made, it is considered to apply to those points only on which 
the purtioH really came to an agreement. 2. Where a man who 
waa, through the fraud of a coheir, in ignorance of all the real 
fiujtw of the case, executed an instrument of compromise without 
the Aquilian atipulation, you cannot say he has made an agree- 
ment; rather he is ' defrauded. 3. Where a man who has not 
yet ascertained that he has a right to bring a plaint to set aside 
hits father's testament has made an agreement to compromise 
other matters with adverse claimants, fthe agreement so con- 
cluded will only bar his action in respect of those matters which the 
partieH arc shown to have had in their minds 1 ;f though the person 
who consented to the compromise was over twenty-five; for as 
for anything for which it only becomes known subsequently that 
he had a right to bring an action at all, it is not right that he 
should lose through the agreement what the parties are not shown 
to have been thinking about 

10 THE SAME (R&ponsa, 1) Where a father compromises the 
rights of sons who were not under his potestas, the law by no 
means allows them to be prejudiced by it 

11 THE SAME (m tfie Edict 4) After judgment has been given, 
although no appeal has been lodged, still, if the fact of judgment 
having been given is disputed, or it is possible for a party to be 
ignorant whether the feet is so or not, then, as there is some 
possibility of u trial being held, a compromise can be made. 

18 ' Cte-BUS (Digest 3) No indulgence must be shown to a man 
who, after making a compromise as to bequests in general made 
to him, proceeds to found some claim on the alleged feet that he 
was only thinking about what was left him at the beginning of 
the testament, and not what was left In a subsequent part as well 
But if codicils are produced afterwards, then I should say he may 
very honestly tell me that he was only thinking about what was 
contained in the text of those testamentary papers which he knaw 
of at the time. 

* The phrwio between 1 1 ii repeated to the text with some Nation by a 
blunder 1 omit the eoond Wfttaa, v. & 



138 On Compromising and Compounding [BOOK n 



MACBR (on the five per cent, statute as to inherit- 
cmce 1) None of the Imperial procurators are allowed to com- 
promise an action without first consulting the Emperor, 

SoasvoLA (Besponsa 2) A dispute arose between the 

statutable heir and a person named heir in the testament, and, 
an arrangement having been made with the creditors, the dispute 
was settled on certain specified terms. I wish to know who it 
is that the creditors can sue. The answer was, if the creditors 
were themselves parties to the arrangement, then what has to be 
followed with reference to the debts is whatever the terms were 
that they agreed upon; but if the creditors [on whose behalf you 
ask] were not parties, then, owing to the doubt existing aa to 
who it was that was really heir to the deceased, the two parties 
mentioned will be liable to utiles actiones to the extent of the 
shares in the inheritance which they both agreed in the arrange- 
ment that they should respectively take. 

5 PAULUS (Sentences 1) A pact agreed upon is commonly 
followed by an Aquilian stipulation, but the better conceived 
plan is to add a penal stipulation as well, because, if the pact 
should chance to be rescinded, the penalty can bo sued for in an 
action on the stipulation. 

6 HERMOGENiAtfUS (Upitomes of law 1) Where a man breukw 
faith in respect of a lawful compromise, he is not only liable to 
be barred by an exceptio, but he may be compelled to pay any 
penalty which he has promised to pay in proper form on Htipular 
tion, in case he should commit a breach of the agreement while the 
pact was still in force* 

L7 PAPINIANUS (Questions 2) The vendor of an inheritance, 
after assigning his rights of action to the purchaser, made a com- 
promise with a debtor to the inheritance who wan not aware of 
the sale; if the purchaser of the inheritance should take HtopK 
to enforce the debt, the debtor must bo allowed in virtue of 
his ignorance to plead by way of eawyrtw that the matter wa# 
compromised. A corresponding rule must be laid down for the 
case of a man who takes an inheritance in pursuance of a Jidti 
commisswn, if the heir-at-law compromises mattcrn with a debtor 
who is unaware of the facts. 



THIRD BOOK. 



ON MOTIONS. 

(m the Kditf, 6) The prsetor published this 
title by way of taking meawirea for keeping up his dignity, 
and aim for maintaining a becoming order, desiring to prevent 
motion** toinff mode before him at random and without dis- 
crimination. 1. With this object he establfched three classes; 
some persons he would not allow to move the court at all, 
others he allowed to make motion** on their own behalf, others 
again he allowed to move for particular kinds of persons 
only, and also for themselves. 3* To move (postidare) is to 
set forth one's own request or that of one's friend in court 
to the matfiBtrate who presides, or to opjwwe a request made 
by the other iirty. ft. The prsotor begin** with those who 
art* forbidden to make any motion at all Here the grounds of 
exclusion given arc childhood and accidental defects. As for 
childhood, th Kdiet forbid* any one to move the court under the 
age of Hcventcen, that IH, if he has not completed that number 
of yearn, IIM the pnetor considered that that time of life was too 
early for any one to come forward in public; though it is said that 
Narva the HOII actually gave opinions on legal Questions when he 
wan of that age or a little older, to any who consulted him* AB for 
accidental defect**, the praotor forbids motions to be made before 
him by pewon* who are deaf, i.e. such as cannot hear at all ; it 
would in fact have been impowdble to allow a man to make a 
motion who was unable to hear the praetor's decree ; indeed, it 
would have been dangerous to the man himself, because, if he did 
not hear the decree, he would be liable to be punished for 
contumacy, on the ground that he did not obey the order of the 
oonrt 4, The prator'f words are :~~"if they have no advocate. 



140 On Motions [BOOK ra 

I will give them one/' It is not the prtotor's practice to show 
this indulgence to the above mentioned class only, he extends 
it to all alike who for specific reasons, such as machinations or 
intimidation on the part of their opponents, fail to find counsel. 
5. Under the second head the Edict deals with persons who are 
forbidden to move on behalf of others : here the pnotor excludes 
on the ground of wex and accidental defect, he also puts a mark on 
persons who deserve one for bad character. With regard to sex, 
lie forbids women to move on behalf of other persons. The prin- 
ciple of this prohibition is that of preventing women from mixing 
themselves up with other people's affairs contrary to the modesty 
which becomes their sex, or discharging offices proper to men ; 
the first case that gave occasion to the prohibition was that of 
one Oarf'ania, a most pertinacious woman, who so worried the 
magistrate with shameless applications as to give ground for the 
rule laid down in the Kdict As to accidental defect, the praetor 
debars a man who has lost the sight of both eyes ; such a man 
being unable to HOC the magisterial badges of oilice and so pay 
them duo respect Labeo tells us that in a case where one 
PubliliuH, a blind man, father of Asprcnas NOIIUB, wanted to make 
an application to the court, Brutus turned hi seat round and 
refused him a hearing. However although a blind man cannot 
move on any one clue's behalf, still he retains \m senatorial rank, 
and he can discharge the office of judtw. It may be asked 
whether he IB able to hold magisterial offices : thin point must be 
considered. There in an instance of a blind man bearing such an 
office ; indeed AppiiiK Claudius the Blind took part in public 
debates, and pronounced a very harsh view in the senate in the 
matter of tho prisoners taken in the war with Pyrrhun, However 
the bent rule to luy down in that such a man is at liberty to keep 
any mugiBtracy which ho haw already begun to exercise, but is 
abttolutely forbidden to be candidate for another ; and there are 
plenty of precedents to confirm this view. 0. The prator also 
debars from moving on behalf of others any man who has been 
used like a woman against nature. But a man who has suffered 
thia outrage by force from brigands or enemies ought not to have 
a Ktigma put upon him, and thin in naid by Pomponim. A man 
who haw beeu condemned on a capital charge is not allowed to 
move on Iwhalf of others. Moreover there is a decree of the 
senate by the terms of which a man who haw been condemned on 
a criminal charge for false accusation (calwMni(t) in not allowed to 
make a motion even txjfore a subordinate judge 



TIT. i] On Motions 141 

Again a man is excluded who hires himself out to fight with beasts. 
In applying the word beasts (bestiw) we must consider the savage- 
ness of the particular animal rather than the question of its 
species ; the creature might for example be a lion, but a tame 
lion, or some other animal with fangs, but still tame. It appears 
from the above that it is simply a man who makes the engagement 
that han a mark put on him, whether he actually fights or not, and 
if ho ahould fight without having hired himself out to do so, he 
will not be liable ; the man who is liable is not one who has fought 
with beantn but one who has hired himself out to do so. We may 
add here that we learn from old writers that persons who fight 
without pay by way of displaying their prowess are not liable, 
unless indeed they allow themselves to receive a distinction on the 
ground ; whoever does that does not, I should say, escape a mark 
of centum). If a man engages his services to hunt wild beasts, or 
to encounter, otherwise than in the arena, a wild beast which is a 
plague to the neighbourhood, he incurs no mark. In short where 
persons have fought with beasts without their object being to 
display their prowess, the prsotor allows them to appear on their 
own behalf, but forbids them to do it on behalf of another. Still 
it ifl perfectly right that where any such persons are exercising a 
guardianship or a curatorship, they should be allowed to make 
applications on behalf of those who are under their charge. If any 
one is shown to have behaved in the way mentioned, he is not only 
debarred from making the motion prohibited on behalf of another 
pernon, but, in addition to that, he will be punished by a pecuniary 
fine in virtue of the extraordinary powers of the court to an 
amount assessed by the judge. 7. As was mentioned at the 
beginning of thin title, the prater divides those who have not 
full right to make motions into three classes, of which we now 
com to the third, comprising those persons to whom he does not 
deny the right of moving altogether, but only says that they are 
not to move tor whomsoever they pleaae ; thus treating them as 
less open to objection than, those who are subject to a mark under 
the preceding heads. 8. The protons words are: "whatever 
persons are forbidden by any statute, plebiscite, senatorial decree, 
edict, or imperial 'enactment to move otherwise than on behalf of 
particular kinds of persons, none such are to move in my court on 
behalf of any other than such penou a* the law allows" Thefefc 
words comprehend all those remaining persons who are set doifa 
as of bad feme (tyfames) in the 'prater's edict; and all such are 
forbidden to move except 10 behalf of themselves and particular 



14:2 On Motions [BOOK m 

classes of persons. 9. Then the praetor proceeds: "wherever 
any one of all those persons mentioned above shall not have been 
restored to his original position (m integrwm restitutus), such a 
one etc/' The words "any one of all those persons mentioned 7 * 
must be taken to apply only to a person who is one of those 
comprehended in the third clause in the Edict and is only allowed 
to move for particular classes of persons ; in a case within either 
of the previous clauses, an order for in integrum restitutio would 
hardly be granted. 10. But to what kind of restitution is the 
prsetor referring ? does he mean restitution by the Emperor or by 
the senate * Pomponius asks this question, and he holds that the 
restitution meant is the one given by the Emperor, or the one given 
by the senate, without distinction. It has however been asked 
whether the prsetor can make an order of restitution himself, and 
my opinion is that no such order made by a prsetor should be 
observed, except where the prsetor gives relief in virtue of his 
magisterial authority, as he commonly does on the ground of 
youth, or where a party has been deceived, and in other cases 
which we shall have to go through under the head of restitutio in 
integrum. This view is supported by the fact that if a man on 
whom judgment is passed in a case entailing infamy should get the 
judgment set aside by restitutio in integrum, he thereupon, in the 
opinion of Pomponius, is cleared of the infamy. 11. The prsetor 
next adds : " Such persons are not to move the court save on 
behalf of a parent, a patron or patroness, or the children or parents 
of a patron or patroness " : about which persons we have already 
spoken more fully under the heading "on citations. " He also 
adds "or their own children or a brother, sister, wife, father-in-law, 
mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, 
stepson, stepdaughter, or ward of either sex, lunatic of either 
sex, 

2 GAIUS (on the provincial Edict 1) or imbecile of either 
sex," as such persons have curators appointed, as well as 
others, 

3 ULPIAJTOS (on the Edict 6) "where the guardianship 
or curatorship of any such person was given to the party who 
desires to move the court by a parent of the person under care or 
by a resolution of a majority of the guardians 1 or by a magistrate 
who had the requisite authority thereto." 1. When we speak of 
" affinity * we must not take this to mean such connexions by 

1 tutorum : but probably it should be tribtmorum^ cf. Gaius 1 185. M. 



] On Motions 148 

marriage as may have existed some time before but only such as are 
existing now. 2. Pomponius adds that the terms daughter-in-law, 
son-in-law, father-in-law and mother-in-law are meant to include 
remoter degrees of connexion such as are usually distinguished [in 
Latin] by the use of the prefix pro ; 3. and that in speaking oi 
curators the praetor should have added the curators of dumb 
persons or of any others to whom curators are commonly given, 
that is, deaf persons, spendthrifts, and those under twenty-five, 

4 PAUUJS (on the Edict 5) as well as any to whom the 
praetor is in the practice of giving a curator on the ground of 
infirmity, 

5 ULHANUS (on the Edict 9) and such as are incapacitated 
by some incurable disease from managing their own affairs. 

6 THE SAME (on the Edict 6) I should say however that any 
persons who are not discharging the office of their own free will 
but of necessity can make a motion without trangressing the Edict, 
even where they belong to the class of persons who [as it is laid 
downj can only move on their own behalf. Where a man is 
prohibited from acting as an advocate, if this means the court of 
the prohibiting magistrate, for such time as the latter continues 
magistrate, in accordance with the ordinary practice, I should say 
the person prohibited can afterwards practise before the magistrate 
who succeeds to the office. 

7 GAIUS (on the provwdal Edict 3) Any one whom the 
pra)tor forbids to move in his court he forbids absolutely, even 
though the opposite party should be willing to allow him to move. 

8 PAPmuNtrs (Questions 2) The Emperor Mtus Antoninus 
laid down by rescript that where a man was debarred by interdict 
from practising as an advocate for a period of five years, there was 
nothing to prevent his making motions after the lapse of the five 
years for whomsoever he pleased. The Divine Hadriaa too laid 
down that a man was qualified to make applications after his 
return from exile. No distinction is admitted in connexion with 
the nature of the offence for which the party was forbidden to 
speak or exiled, otherwise a penal period which was definite as to 
duration might be farther prolonged, in contradiction to the terms 
of the judgment 

A THB SAJOS (Btvpontf* 1) Whep a ma is forbiddea to mojpe 
on behalf of others on gome gww4>hich <Joes not enta 
md coasequently does BO* deprive Mm of the right to 



144 On Motions [BOOK m 

behalf of others in every case, he is only disabled from moving on 
behalf of others in the province in which the magistrate who 
pronounced the prohibition was prceses ; the prohibition does not 
extend to any other province, though it should bear the same 
name. 

PATJLTTS (Rules) Advocates of the Fiscus are at liberty to 
appear on their own behalf or on behalf of their sons or parents 
or of wards in whose guardianships they are acting, and even to 
appear against the Fiscus. As a matter of fact members of a 
municipal curia are forbidden to appear in a case against their 
own municipality, except such persons as are above mentioned. 

TRYPHONIKUS (Disputations 5) A rescript of the present 
Emperor lays down that a guardian is not forbidden to be of 
counsel for his ward in a matter in which he has already acted as 
pleader against the ward's father. Not only so, but the guardian 
may plead the cause of his ward against the Fiscus, even though 
he previously acted for the Fiscus in the same matter against the 
ward's father. 1. As for the question what persons are included 
under the term infames, the answer to that will be set forth in the 
next title. 



II. 
OK THOSE WHO AJRE MARKED WITH infamia. 

JTTUANTJS (on the Edict 1) The praetor's words are: A man 
is marked with infamy who is dismissed from the army by way of 
disgrace, either by the commander or by the officer who has the 
power of pronouncing on the matter ; or a man who appears on 
the stage in exercise of the calling of a player, or in order to 
recite; or carries on the trade of procurer; or is pronounced in a 
criminal trial to have committed any act by way of false accusation 
or in collusion with the accused ; or has had judgment given 
against him in an action for theft, robbery, injuria, dolus malus or 
fraud, where he was a party to the action on his own behalf, or to 
have compromised any such action ; or has had judgment given 
against him in an action pro sotio or an action on guardianship, 
mandatoim or depositum, to which he was a party on his own 
account, such action not being an actio contraria; or who, having 
a [married] woman under his potestas, did on the death of his 
son-in-law, and with knowledge of the fact of his death, before the 



TIT- n] On those marked with infemia * 145 



^ 

e her mourning for her deceased husband, give such woman 
** ** tod >*Pfeted toe moSning; or o 
knowledge of toe fects, teke to wife a widow in the 
case above mentioned, without being ordered to do so by toe man 
m whose potestas he was himself; or who, having a man under his 
potestas, should allow him to take to wife a woman situated i 
above mentioned; or who should, either on his own behalf, but not 
oy order of the person exercising potestas over him, or on behalf 
ot a man or a woman over whom he was exercising potestas, have 
two betrothals or two marriages on foot at toe same time. 



(0* the Edict 6) Whereas toe prater says "who 
shall be dismissed from toe army/' the word dismissed must be 
taken to refer to a soldier who wears toe military boot, or any 
other soldier who is dismissed, including a centurion, or the 
prefect of a cohort, or wing, or legion, or the tribune of either a 
cohort or legion. Pomponius says, in addition to toe above, that 
the officer who is in command of toe army, though he may display 
the badges of toe consular office, if dismissed by the Emperor by 
way of disgrace, is branded with this mark; accordingly, even if a 
general is dismissed when in command of an army *, if the Emperor 
dismisses him, and adds, as for the most part he does add, that he 
dismisses him by way of disgrace, there need be no doubt that the 
general is also marked with irdkiny in pursuance of the praetor's 
Edict; but this is not the case where a successor is appointed 
without any displeasure on toe part of toe Emperor. L The word 
army (exerdtm} does not mean one cohort, or one wing, but a 
large body of troops; thus we may say that a man is in command 
of an army, when he is at the head of a legion or several legions, 
with the corresponding auxiliary troops which have been entrusted 
to him by the Emperor; but here too, when a man is dismissed 
from any particular division, this must be treated as .equivalent to 
dismissal from the army. 2. "Dismissed by way of disgrace." 
The reason why this w$s added is that there are several different 
kinds of dismissal There is, honourable dismissal which is accorded 
by the Emperor when a man has completed his time of service, or 
sooner, there is dismissal for sicfoiess ^^ome), ^hich releases a 
man from the labour of mifttaiy service ta, the ground of ill-healthy 
there is dismissal in disgrace. Dispii^al!jua d%ra<ce occurs wfye*v- 
ever the person in authority who <Jjton^ adjto expressly ti^t h* 

1 Pel notatw 0fc,'lL **n? 



M.J. 



146 On those marked with infamia [BOOK in 

does so by way of a disgrace; he is always bound to give the 
reason for which a soldier is dismissed. Even where a man is 
cashiered, that is where his badges of service are taken away from 
him, this makes him infa/ims, though the authority should not go 
on to say that he is cashiered as a mark of disgrace. There is yet 
a fourth kind of dismissal, which occurs where a man has subjected 
himself to military service in order to avoid discharging some 
office ; but dismissal in this case does not affect a man's character, 
as has been very often laid down by rescript. 3. A soldier who is 
condemned under the lex Julia de adulteriis is so distinctly 
in/amis that the very judgment itself releases him from the oath 
of service as a mark of disgrace. 4. When soldiers are dismissed 
in disgrace they are not at liberty to stay in the city or in any 
other place where the Emperor is. 5. The prsetor says: "A man 
is infamous who appears on the stage/' The stage (sccena), ac- 
cording to Labeo's definition, is something which is set up for the 
purpose of performances in any place in which a man stands or 
moves about to exhibit himself to spectators, whether it be in 
public or in private or in a street, so long as it is some place to 
which people are admitted as spectators promiscuously. In fact 
all such as take part in contests for gain and all who appeal' on 
the stage for reward are declared by Pegasus and Nerva the son to 
be of bad repute. 

3 GAIUS (on the provincial Edict 1) Where a man hires out 
his services by way of agreement to appear in the calling of a 
player, but does not actually appear, he is not marked; the 
profession in question is not disgraceful to such a degree that the 
very intention should deserve to be punished. 

4 ULPIAJHTS (on the Edict 6) Athletes, so Sabinus and 
Oassius laid down, do not exercise the calling of players at all ; 
they act as athletes only to display their prowess. In fact, as a 
general rule, everybody holds, and it seems a sound rule, that no 
members of an orchestra, or porch-athletes, or chariot-drivers, or 
washers-down of horses, or any other attendants of such persons as 
make it their business to act in the sacred contests, should be held 
to incur ignominy. 1. Umpires, whom the Greeks call "brabeufcfc," 
do not practise the calling of players, as Celsus shows ; in fact, 
they do not act as players, they discharge a service; and the post 
is one which at the present day is given by the Emperor as no small 
favour. 2. The prsetor says "who carries on the trade of pro- 
curer." A man practises the trade of procurer who keeps slaves 



TIT. n] On those marked with infamia 

who bring in a profit in this way; and if a man makes a similar 
speculation with free women, he is in the same position. Moreover, 
whether he makes this his main business, or has some other kind 
of business as well, for instance, suppose he is an innkeeper or a 
tavernkeeper, and has slaves of this kind who wait on travellers, 
and use the opportunity so afforded to make gain in the way 
described, or he keeps baths, and, as is done in some provinces, 
he has slaves at the baths whom he hired to take charge of the 
clothes of customers, and these carry on the above practices at the 
bathing establishment, in all these cases he will be liable to the 
I>enalties inflicted on procurers. 3. According to Pomponius, even 
where a man who is himself a slave makes this use of female slaves 
who are part of his peculivm, he will be marked with infittny after 
gaining his freedom, 4. A man who commits cdlumnia (taking 
proceedings in bad feith) is only marked if judgment is given 
against him thereupon, it is not enough that he should have been 
in fact guilty; and a prevaricator is in a similar position. A 
prevaricator is, as it were, a "varicator" (straddler), a man who 
betrays his own case and helps, the other side; the name, according 
to Labeo, is derived from t?ona certatio (varying contention), as a 
man who prevaricates has been standing on both sides, in short, he 
has stood on the opposite side to his own. 5. Again if a man 
suffers judgment or makes a compromise in an action for theft, 
robbery, irywia, or dolw malm to which he was a party on his 
own account, he incurs infamy in the same way, 

5 PAULUS (on the Edict 5) as a man who compromises a 
charge is regarded as confessing it 

6 UI/PIANUS (ew the Edict 6) The word "theft" must be 
understood to indude both jfortfwm mcmifestum and/wrfam nee 
mmffittom. 1. But if a man, after judgment against him in an 
action for theft, or any other action involving infomy, appeals, 
then, pending the appeal, he is not regarded as infamous, but if 
the whole period within which he can bring the appeal should be 
allowed to lapse, he is held infemous by relafckm back from the 
time of the original Averse judgment ; though, at the same time, 
if his appeal is rejected, I should say he is Barked as from that 
day only, not froip the original time. 2, If a defendant suffers 
adverse judgment as representing some one else, he is not branded 
with infemy; consequently any agent of mine, or person w%> 
volunteered to take up my case (dqfensor), or my guardiaa ,05 
curator or heir will not be marked with infamy on adverse 

102 



148 Chi those marked with infamia [BOOK in 

judgment in an action for theft or any similar offence [committed 
by me], nor shall I myself, if my case was conducted all through 
by means of an agent. 3. The Edict proceeds "or makes a 
compromise." Compromise must be taken to mean compromise 
for some pecuniary consideration, whatever the amount ; otherwise 
a man will be marked even where he induced the other party by 
earnest entreaty to abandon the action, and no account will be 
taken of cases of forbearance; but this is inconsistent with humanity. 
Where a man compromises an action by the praetor's order on 
pecuniary terms, he is not marked. 4. Add that if a man, on an 
oath being tendered him, swears that he did no wrong, he will not 
be marked ; he has in a way established his innocence by oath, 
5. As to the reference to adverse judgment on mandatum, the 
language of the Edict puts a mark not only on the party who 
undertook the mandate, but on any one who fails to keep faith 
where the other relied on his doing so. For instance : I was 
surety for you, and had to pay; if I get judgment against you 
in an action on the mandatum, it makes you infamous. 6. There 
is of course this to be added, that sometimes the heir himself 
suffers judgment on his own account, and so becomes infamous, 
viz. where he acted dishonestly in connexion with a deposit or a 
mandate; in respect of a guardianship or partnership the heir 
cannot suffer judgment on his own account, because an heir doas 
not succeed to the position of guardian or partner, he only 
succeeds to the liability for debt contracted by the deceased. 
7. Adverse judgment in an actio contraria does not entail infamy ; 
and this is as it should be, as in such actions no question of bad 
faith is at issue, but the point 1 commonly decided by the court 
is a question of computation. 

7 PAULUS (on the Edict 5) In actions founded on contract, 
even where they should involve infamy, and parties who suffer 
adverse judgment be marked, still one who makes a compromise 
is not marked. This is quite right, as a compromise is not so 
dishonourable in these cases as in those above mentioned. 

8 ULHANTO (on the Edict 6) The words occur " on the death 
of his son-in-law." The praetor very rightly adds " he being aware 
of the feet of the death," so as to prevent his ignorance being 
punished. As however the period of mourning admits no interval, 
it is right that it should, as it does, begin to run from the day of 
the husband's death even where the death is unknown to the 

i Dele qui. M. 



TIT. n] On those marked with infamia 3 

widow ; so that, if she only becomes aware of it after the expiral 
of the prescribed period, then, according to Labeo, she can put 
mourning and lay it aside on the same day. 

9 PAULTJS (on the Edict 5) Men are not compelled to mo 
for their deceased wives. There is no mourning for a betrothed 

10 THE SAME (on the Edict 8) It is in accordance with 
present practice that a widow should get leave from the Empi 
to marry again within the prescribed period. 1. When a woi 
completes the period of mourning for her deceased husband, 
incurs no censure for having been engaged in the meantime 
marry again. 

11 ULPIA^US (on the Edict 6) Mourning for children 
parents is no impediment to marriage. 1. Even where 
deceased husband was some one for whom, by established cust 
a woman ought not to observe mourning, still the widow cannot 
given in marriage before the expiration of the statutable tii 
the prsetor looks at the day on which mourning for a decea 
husband would terminate, and the object of making it a prac 
to complete the period is to avoid confusion of blood. 2. B 
ponius holds that a woman who bears a child within the prescri 
time may at once give herself in marriage, which, I should saj 
sound 3. It is not the practice, so Neratius says, to obse 
mourning for enemies, or for persons condemned for perdw 
(treason), or those who hang themselves, or lay violent hands 
themselves from a bad conscience and not from weariness of 1 
still if a widow 1 , where the husband has died under any s 
circumstances, should give herself in marriage [within the peri 
she will be marked with infamy. 4. A mark is also set on 
man who takes to wife such a widow, that is, if he knows the f 
ignorance of law is not excused, but only ignorance of fact. A i 
who should make such a marriage by the order of one who 
potestas over him is excused, and the mark is put on the pe 
himself who suffers him to make the marriage. Both these i 
are sound ; the party who complied deserves indulgence, and 
one who allowed him to make the marriage may fitly recei 
mark of ignominy. 

12 PATTLUS (on the Edict 5) When a man marries by the o 
of his father [under the circumstances mentioned], if he keepj 

1 For si quis read or understand si qua. I 



150 On those marked with infamia [BOOK m 

wife after he is set free from his father's potestas, he is not on that 
account marked. 

13 ULPIATOS (on tlie Edict 6) How then if the father did not 
give the son leave to marry, but ratified the marriage after it was 
made? suppose for instance he was unaware originally that the 
circumstances of the woman were such as described, but afterwards 
found it out : in this case he will not be marked, as the praetor 
looks at the time when the marriage took place. 1. Where a man 
contracts two betrothals on some one else's behalf, he is not 
marked, unless he concludes them on behalf of some man or 
woman whom he has under his potestas ; of course it must be held 
that a man who allows his son or daughter to contract a betrothal 
may be held to have in a way contracted it himself. 2. Where 
the praetor says "at the same time," we must not take this to 
mean the actual betrothals being contracted at the same time, 
but to apply equally where the periods to any extent coincide. 
3. Again if a woman is betrothed to one man and married to 
another she is punished by the rule given in the Edict. 4. And 
as it is the party's own act which entails the mark of infamy, it 
follows that, even where the woman with whom a man contracts 
marriage or betrothal is one whom he cannot marry legally, 01* 
cannot marry consistently with religious principle (fas), he will 
still be marked. 5. [The award of] a person made arbitrator by 
mutual compact does not lay a party under infamy, as such an 
award is not in every respect the same thing as a judgment 

6, As far as the question of infamy is concerned, it makes a great 
deal of difference whether in the case before the court the judge 
made his decision after a regular hearing, or something was uttered 
independently, in the latter kind of case no infemy is inflicted. 

7. Where a penalty of undue severity is imposed beyond the terms 
of the statute, the character of the party is not affected ; this has 
been enacted, and also laid down by responmn. Suppose for 
instance the prseses should relegate a man who ought only to have 
been mulcted in a part of his property, the proper view to take is 
that by suffering so severe a sentence the accused persou has 
compounded for the retention of his character, and accordingly he 
is not itrfamous. At the same time, if, in a case ofjwrfam viec 
manif&tnm, the judge makes an order for payment of four times 
the value, then the extra penalty laid on the defendant is no doubt 
a grievance, as, where the furtim is not mcwiifesfam, ho ought to 
have been sued for the double value only; still this fact does not 



TIT. n] On those marked with infamia 151 

prevent the loss of his character; whereas, if the penalty which 
the judge inflicted in excess had not been of a pecuniary kind, the 
party would be held to have compounded 8. A charge of 
titellionatm imposes infamy on the party on whom judgment is 
pawned, though this is not a subject for a pubKeum judidum. 

14 PAULUS (on the Edict 5) Where an owner defends a noxal 
action brought in respect of his slave, and after that emancipates 
the name slave by testament, and appoints him heir, if the latter 
Hhould then himself suffer judgment in the action, he does not 
iwcome infamous, because he does not incur judgment on his own 
uecount, an he was not a party to the original joinder of issue. 

15 ULPIAKXJS (on the Edict 8) A woman is marked who gets 
an order for possession on behalf of an alleged unborn child on 
fake pretences (per calumniam\ that is, by declaring that she is 
with child, 

16 PAULUB (on the Edict 8} when in reality she is not, or is 
with child by a man who was not her husband; 

17 ULHANITS (on the Edict 8) as a woman who deceives the 
prsetor ought to be punished But a woman who acts as above 
mentioned is only marked where she does so without being at the 
time subject to potestas. 

18 GAIUS (on the provincial Edict 3) Where a woman was 
under a delusion in the matter, she cannot be held to have been 
in possession on fetee pretences, 

10 ULPIANUS (on the Edict 8) and no woman is marked save 
one as to whom it is judicially declared that she got the order for 
poeaeftBion by means of felse pretences. The law will apply equally 
to a father who procures by felse pretences that a daughter whom 
be bad under his poterta$ should get an order for possession on 
behalf of an alleged unborn child 

90 PAPIKMNCS (Reqpowa 1) A man to whom these words are 
addreesed to the judgment of the prsesee of a province You 
teem to have need a cunning contrivance to set some one on to 
bring an accusation" to rather put to shame than, as fer as appears, 
Wd under ignominy; the feet is a person who incites another does 
not positively act in the wfcy of giving him a mandate. 

21 PAULtJB (Reqponx* 2) * tacfefi THfs preferred a charge 

aJDtegtog that to had suffered wrong a* his 



152 On those marked with infamia [BOOK m 

hands, and read a written testimony in support of his case before 
the Praefectus Praetorio. The prsefect did not put any faith in the 
deposition, and declared that Lucius Titius had suffered no wrong 
at the hands of Gains Seius. My question is this: are the 
witnesses whose testimony was rejected classed with infamous 
persons on the ground of false testimony? Paulus's answer was 
that no ground] was stated which would make it right that those 
about whom the question was asked should be classed among 
infamous persons, seeing that it was not right that where a judg- 
ment, whether just or not, is given in favour of one person, another 
person should be prejudiced by it 

22 MABCELLUS (publica 2) The infliction of a beating does 
not entail infamy, what does is the ground on which the party 
incurred the punishment, assuming that the ground in question is 
one which imposes infamy on a man who is condemned to it. 
A similar rule is laid down as to other kinds of punishment 

23 ULPLAJSTUS (on the Edict 8) Mourning ought to be observed 
for parents and children of both sexes, and other agnatey and 
cognates as well, agreeably to the dictates of family affection and 
to the extent to which any particular person is ready to assume it ; 
but a person who does not complete the regular period of mourning 
in such cases is not marked with infamy. 

24 THE SAME (on the Edict 6) The Emperor Severus laid down 
by rescript that the character of a woman in respect of infamia 
was none the worse for the fact that her owner made [immoral] 
gain by her means when she was a slave. 

25 PAPIKIANTTS (Questions 2) It has been held right that oven 
a disinherited son should observe mourning in memory of life 
father, and a similar rule applies in the case of a mother whose 
inheritance does not pass to her son. 1. When a man is killed in 
battle he must be mourned for, even though his body should not 
be found. 



TIT. ra] On "Procurators" and "Defensors" 153 



III. 

OK " PROCUBATOBS * AND " DEFENSORS." 

(AGENTS, WHETHER APPOINTED OB VOLUNTAEY.) 

1 ULPIANUS (on the Edict 9) A procurator is a man who 
manages another person's affairs in pursuance of a mandate from 
his principal 1. A procurator may be appointed for affairs in 
general or for one affair in particular, and either at an interview 
or by a messenger or by letter; though some hold, so Pomponius 
says (b. 24), that a man is not a procurator where he undertakes 
a mandate with respect to a single affair, just as a man is not 
called a procurator in the strict sense who undertakes to carry 
a thing or a letter or a message. But the better opinion is that 
a man is a procurator even when he is appointed for a single 
affair* 2, The employment of procurators is absolutely necessary, 
in order that persons who are unwilling or unable to look after 
their affairs themselves may be able to bring or defend actions by 
the intervention of others* 3. A man may be appointed procurator 
even in his absence, 

2 PAULUS (on the Edict 8) provided always that the person 
who is understood to be appointed is ascertained, and he himself 
ratifies the appointment 1. A lunatic must not be deemed in the 
same position as an absent person, as he is devoid of intelligent 
will, so that he is unable to ratify. 

3 ULPIANUS (on the Edict 9) A procurator can also be 
appointed for a future trial, or for a future day, or on a condition, 
or until a particular day, 

4 PAULUS (on the Edict 8) or for an indefinite time. 

6 ULPIANUS (on the Edict 7) A man is said to be present 
even when he is in the pleasure-grounds, 

6 PAULUS (on the Edict 6) or in the/omra, or in the city, or 
somewhere within the spa^e over which buildings extend from the 
city without a break ; 

7 ULPIANUS (on the Edict 7) so that his procurator is held 
to be the agent of one who is present. 

8 THE SAME (on the Edict 8) A JUwtfamilia* can appoint 
a mowwtor for bringing an action, where the action * one which 
hfcould have brought himself; and that not only when he<has 



154 On "Procurators" and "Defensors" [BOOK ni 

castrense peculium ; any fMusfa/ndlias can do it. For example, if 
he has suffered an injuria he can appoint a procurator to bring 
an actio injuriarum, supposing, that is, that his father is not 
present and no procurator for his father chooses to take the 
proceedings, and such appointment of a procurator by the filius- 
familias himself will be valid. Julianus goes further ; if, he says, 
a filimfomilias has himself a son who is subject to the same 
potestas as Jie is, and an injuria is done to him in the person of 
that son, the paterfamilias not being present, he, tkejilm&familias 
first mentioned, can appoint a procurator to get satisfaction for 
the injuria inflicted on the grandson of the absent man. kfilim- 
familias can also appoint a procurator to defend an action. We 
may add that a filiafamilias can equally appoint a procurator to 
bring an action for injwria ; for, as for the fact that, in the case of 
an action to recover dos, the daughter joins with her father in 
appointing a procurator, this, according to Valerius Severuw, is 
quite unnecessary, it being enough that the father should appoint 
at the daughter's request I should say however that if the father 
should chance to be absent, or to be a man of doubtful moral 
character, in both which cases the practice is for the daughter to 
be allowed to bring the action herself, it is open to her to appoint 
a procurator. 1. It is not the practice that a man should be 
appointed procurator against his will ; and we must understand 
the appointment to be against his will not only where he object^ 
but even where it is not shown that he consents. 2. Veteran 
soldiers can be appointed procurators ; but soldiers on service 
cannot be appointed, even with the consent of the other party to 
the action, unless by some accident the matter was overlooked at 
the time of joinder of issue: and excepting always the cane of 
a soldier being made procurator on his own behalf, or undertaking 
to prosecute or defend an action in which all the men of hit* 
detachment (mmcrus) are interested alike, in which case he in 
allowed to be procurator. 3. " Where a man has been appointed 
procurator for defending a case on whose behalf the principal haw 
with his consent furnished an undertaking that the order shall IK) 
complied with (judicatum solvf), then," such arc the priotor'n 
words, "I will compel him to undertake the case." However, ON 
sufficient cause shown, he ought not to be compelled ; suppono for 
instance a deadly quarrel arises in the meantime between the 
procurator himself and the principal; in such a case, so Juliauus 
tells us, the action cannot be allowed against the procurator. The 
same result ensues if some position of rank should be acquired by 



TIT. ra] On "Procurators" and "Defensors" 155 

thepm^rafor, or he should have to be absent on government 
service, 6 

9 GAIUS (on the provincial Edict 3) or he can show iU-health 
or urgent necessity for going to a distance; 

10 ULPUNUS (on tU Edict 8) or he is busy about m in- 
heritance which has come to him ; or there is any other sufficient 
excuKe, Besides all this, the procwrator ought not to be forced 
[to take up the case] when his principal is present, 

11 PAULXTS (on the Edict 8) provided, that is, the principal 
himself can be compelled to do so. 

12 ^ GAIUS (on tfie jyrovincial Edict 3) Other grounds too it is 
said are sometimes sufficient for compelling a procurator to take 
joinder of issue ; suppose, for example, the principal is absent, and 
the plaintiff maintains that lapse of time would cause the matter 
at stake to be lost. 

13 ULPUNUS (on the Edict 8) However, such grounds ought 
neither to be allowed without discrimination nor yet peremptorily 
sot aaide, the matter should be ordered by the prator after he has 
heard the facts, 

14 PAULUS (on the Edict 8) If, after the appointment of a 
procwrctfor, deadly enmity arose [between to and his principal], 
the procurator must not be compelled to take issue, and he does 
not become liable under the stipulation on the ground of default 
in defending the case, as the circumstances are not the same. 

15 ULPIANUS (on the Edict 8) If the principal dies before 
joinder of issue, having already given an assurance on stipulation 
on behalf of his procurator that the judgment shall be obeyed, the 
procurator can be compelled to undertake the case, but only 
where the principal gave the assurance with the knowledge of the 
procurator and without the Jatter making any oloection. Should 
{he feet be otherwise, it is thoroughly contrary to legal principle 
that foe procurator should be liable where he had no knowledge ; 
jdjjjffl an action can be brought on the words qf the stipulation on 
tto ground of default in defending the action, 1. Where a man 
to appointed prowrator for an action comwum dividwdo, he 
mtjjst be held to be appointed to act both as plaintiff and defendant, 
Md a double assurance must be given. 

16 / PAUMTS (<m tite Edict 8) Up to joinder of issue the principal 
I* free either to appoint another procurator in, the place 

or to take joinder of issue himself. 



158 On "Procurators" and "Defensors" [BOOK ra 

actio utilis on the stipulation must be allowed to the principal, the 
direct right of action being taken away altogether. 

28 THE SAME (disputations 1) If my procurator has had 
security given him that the judgment will be obeyed, I have an 
actio utilis on the stipulation, just as an actio utilis on the 
judgment is conceded to me. Indeed, even where my procurator 
has sued on the stipulation without my consent, still this will not 
prevent an action on the stipulation being granted me. The 
consequence of this is that if my procurator sues on the stipulation, 
he can be barred by an ewceptio, just as he may where he sues on 
the judgment, assuming that he was not appointed procurator 
on his own behalf, or with a view to his bringing the very action. 
But, to take the converse case, if my procurator [is defendant and] 
gives an undertaking that the judgment will be complied with, 
no action on the stipulation will be allowed against me. And if 
my defensor [voluntary agent for the defence] gives the under- 
taking, the action on stipulation is not allowed against me, because 
I cannot be sued on the judgment itself. 

29 THE SAME (on the Edict 9) If the plaintiff would rather HUC 
the principal than the person who is procurator on his own behalf, 
the rule is that he has a right to do so, 

30 PATJLUS (Sentences 1) A procurator for a plaintiff, [ ie, one | 
who was not made procurator on Ms own behalf, may claim, in 
order to meet the expense which he incurred in the trial, that 
he should be satisfied out of the money recovered in the action, if 
the principal in the case is not in a position to pay. 

31 ULPIAJSTUS (on the Edict 9) If a man, after judgment in 
given against him in a suit which he defended as procurator, 
becomes heir to his principal, he cannot disclaim his liability to an 
action on the judgment This is the rule where he is nolc heir. 
If he is co-heir along with others, and he pays the whole judgment 
debt, then, if it was expressly included in his original mandate 
of agency that he should pay, he will have a good action on the 
mandate against his co-heirs; if it was not part of hiw mandate, 
he has an action on negotia gesta: and this last is equally the cane 
if the procurator does not become heir at all, but still pay& 
1. There is no law against several procurators being appointed for 
one trial on behalf of several persons respectively. 2. Julianua 
says that where a man appoints two different procurators at 



TIT. in] On "Procurators" and "Defensors" 159 

different times, by appointing the second he must be held to have 
revoked his appointment of the first. 

32 PAULUS (on the Edict 8) Where a number of different 
peraoira are appointed jjrocurators at the same time, each for the 
whole matter, the one who proceeds first will be in the better 
potation, so that one who comes later will not be procurator as to 
anything about which another has got before him and is suing 
already. 

83 ULPIAK us (on the Edict 9) It is said that even a slave or 
bfliwyfamiliw can have a procurator. As far as thefiliuqfamilias 
is concerned, this is true; as to the slave, I should demur. 
It is allowed that a person should carry on a slave's transactions 
for him where they depend on his pewdium, and so fer be his 
procurator, and this is Labeo's opinion, but it is not allowed that 
ho fthould bring an action. 1. There is no doubt, however, that 
a man who IK a party to proceedings about his status can have 
a jtrovnrator not only in connexion with the management of his 
ailairs, but for such judicial proceedings as may be taken either on 
hit) behalf or against him, whether he is living as a slave or as 
& free man 1 . Conversely too it is clear that he can be appointed 
procurator for another, 2- It is a matter of public policy that 
absent persons should be defended by some one or other ; even in 
capital trials defence is allowed on behalf of an accused person. 
Accordingly, wherever judgment could legally be pronounced 
against a man in his absence, it is just that any one should have 
a hearing who chooses to speak for him and argue in favour of his 
innocence, and it is the regular practice to allow it ; indeed this is 
shown by a rescript of the reigning Emperor. 3, The praetor 
my* ._ Where a man requests that an action should be allowed 
him on behalf of another, he must defend his principal to the 
ion of an impartial arbitrator ; and he ought, subject to 



similar arbitration, to give security 2 to the person against whom 
he brings an action on behalf of another that the person concerned 
at principal in the matter will ratify what is done." 4. It was 
thought just by the praetor that where a man takes proceedings aa 
procurator on behalf of another, he should also [be ready to] 
undertake the same person's defence. 5. If a man takes proceedings 
as a procurator on his own behalf, the rale still is that he is bound 
1 Text oonfawd rod probably an interpolation : the above appears to be the 



Mitag. 

* For qw road guocum alteriue. Of. M. 



160 On "Procurators" and "Defensors" [BOOK m 

to defend [the person who appointed him], except where that 
person had no choice as to appointing him. 

34 GAIUS (on the provincial Edict 3) Where a man sues in the 
character of procurator on his own behalf, for instance, where he 
is purchaser of an inheritance, will he be bound conversely to 
defend his vendor? The rule is that if the transaction was 
concluded in good faith, and with no intention to prejudice persons 
who might desire to sue the vendor on their part, he will not be 
obliged to defend him. 

35 ULPIANTJS (on the Edict 9) However, procurators of the 
following classes will be bound to defend their principals, being 
persons who are at liberty to sue without a mandate, viz. children, 
though subject to potestas, also parents, brothers, persons con- 
nected by marriage and freedmen. 1. A patron can proceed 
against his freedman for ingratitude by a procwrator and the 
freedman can meet the charge by a procurator, 2. Not only 
where what the procwrator asks for is an action properly so called, 
but also where it is a $r&judiwum (preliminary inquiry) or an 
interdict, or where he applies for an order to give an undertaking 
for payment of legacies or for security against damnwm, infectwm, 
will he be bound to defend his principal in his absence, before any 
competent court, [that is,] and in the same province. Of course 
it would be oppressive that he should be called upon, in order to 
defend him, to leave Rome and go to a province 1 , or the converse, 
or to go from one province to another. 3. To defend implies 
doing what the principal himself would do in reference to the case, 
and giving a sufficient guarantee, and the position of the procwrator 
ought not to be made more burdensome than that of the principal 
would be, except in the matter of giving security. Setting aside 
the giving security, it is clear that the procurator is held to defend 
only where he proceeds to joinder of issue. Hence the question is 
raised in Julianus's treatise, whether he is compellable to join issue, 
or it is enough that, the case not being defended, an action can be 
brought on the stipulation. Julianus says (Dig. 3) that he is 
compellable to join issue, unless, after inquiry, he should decline 
to proceed at all, or should on sufficient grounds be removed* 
A procwrator is regarded as defending a case even where ho allows 
the other party to take possession, where the party has applied 
for an undertaking against dcmniwi infectum or for the payment 
of legacies, 

1 For proeineict read provindam. Of. M. 



TIT. m] On "Procurators" and "Defensors" 16] 

36 PAULUS (on the Edict 8) or in a case of opwis nov 
nuntiatio. And even where he allows a slave to be taken off b] 
the plaintiff in a noxal action, he is held to defend the case 
provided in all these cases he gives an undertaking that th< 
principal will ratify. 

37 ULPIANUS (on the Edict 9) But he must defend his principa 
in respect of all actions, even those which are not allowed agains 
the heir. 1. Accordingly the question has arisen whether, sup 
posing the other side brings several actions, and there are different 
defensors forthcoming (voluntary agents for the defence) who are 
ready to undertake the respective cases, the party is property 
defended; Julianus holds that he is; and such, according to 
Pomponius, is the present practice. 

38 THE SAMS (on the Edict 40) Still we must not go so far as 
to hold that if an action is brought for ten thousand, and there are 
two defensors forthcoming who are ready to defend for five 
thousand each, they ought to be allowed to appear. 

39 THE SAME (on the Edict 9) A procurator is not bound to 
defend merely in actions and interdicts and by entering into 
stipulations, but in connexion with interrogatories too, so ^ that, 
when examined in the magistrate's court, he may answer in all 
cases where the principal would have had to answer himself. He 
will therefore be bound to answer as to whether an heir is absent, 
and, whether he answers or holds his tongue, he may be liable. 
1. A man who brings an action of any kind whatever on another's 
behalf is bound to give an undertaking that the party concerned 
will ratify what is done. Sometimes, indeed, even where a pro- 

cwrator takes proceedings on his own behalf, he will still be bound 
to give an undertaking that his principal will ratify, so Pompomus 
tells us (6. 24). For example, take this case. The defendant tenders 
in return an oath to the procurator*, and the ktter swears that 
something or other is due to an absent principal; hereupon the 
action which he brings is brought as if he were principal, because 
of his own oath ; (as in fact this action could not possibly be open 
to the real principal ;) still ihe jprooMwrtor must give an undertaking 
for ratification. Again, suppose an assttfance is given to the; 
wrocwrator in the form of constifotwi, and he brings an action m ; 
pursuance of it, it is beyond question that this is a proper case; 
for giving an undertaking for ratification, and this we read m l 
1 After rettulit ins. advers&riWi & is. M. 

11 



162 On "Procurators" and "Defensors" [BOOK m 

Pomponius. 2. In Julianus we fiud this question : is the pro- 
curator bound to guarantee that the principal alone will ratify, or 
that the other creditors will do so as well? to which what that 
author says is that the undertaking need only refer to the principal, 
and that the expression " the person concerned in the matter " 
does not comprehend the creditors, seeing that the principal 
himself was not bound to give such an undertaking. 3. If a father 
sues to recover dos [on behalf of his daughter], he is bound to give 
an undertaking that the daughter will ratify; moreover he is 
bound to defend an action against her ; Marcellus himself has tint*. 

4. If a father brings an action for injma on behalf of Inn HOU, 
then, as there are two actions allowed, one by the father and 
one by the son, there is no undertaking given for ratification. 

5. If a procurator contests a question of status with anyone, 
whether it is a case where someone who passes for a slave institutes 
proceedings against him to establinh his liberty, or he hiiuHclf 
brings an action to establish the servitude of someone who pusses 
for free, in both cases he IB bound to give an undertaking that the 
principal will ratify the matter. This appears by the won IK of 
the Edict, so that the procurator iw treated aw if he were plaintiff, 
on whichever side he contends. 6. There is one case in which 
a man has to give an undertaking both for ratification and for the 
judgment being obeyed, in respect of one and the sjimc action. 
The case is this. Application is made for a hearing with a view 
to a restitutio in integrum on the alleged ground that undue 
advantage has been taken of some one under twenty-five in the 
matter of a sale, and on the other side the party is represented by 
& procurator ; here the procurator is bound to give an undertaking 
first, that the principal will ratify tho matter, becaune otherwine 
the principal might come forward later and desire to ruine wane 
claim, and, secondly, that the judgment will be obeyed, HO that 
if eventually something has to be given to the minor in conwequenee 
of his getting the restitutio in intcyrum, it may be accordingly 
given. All this may be read iu Pomponiuw (on the TSdiM 25), 
7. This writer also says that if an application nhould be made to 
remove a guardian, any one who undertakes the catie for the 
guardian, ought also to give security for ratification, lent hit* 
principal should come forward and claim to wet aside what hoH 
been done. However, the case could hardly arise of a guardian 
being complained of through a jrroeurator, UB it in a quotation 
involving infamy; unless it should appear that the guardian gave 
instructions to the particular procurator expressly, or elne the 



TIT. in] On "Procurators" and "Defensors" 163 

praetor were proceeding to hear the case in the guardian's absence, 
and HO treated it as undefended. 

40 THE SAME (on the Edict 9) Pomponius tells us that it is 
not every kind of proceeding that a man can institute by means of 
a jtrocttratvr ; for example, a procurator cannot ask for an interdict 
to enable him to take off with him children whom he alleges to be 
under the potesta$ of some absent person, except, as Julianus says, 
upon duo cause shown, in other words, unless he has been specially 
instructed to do it, and the father is prevented by ill-health or 
wine other sufficient reason. 1. If a procurator stipulates in 
respect of damnnm infectum or legacies, he is bound to give an 
undertaking for ratification. 2. Moreover, a man who is sued as 
dcfemor in an action in rem is bound to give an undertaking for 
ratification in addition to the regular guarantee that the order 
will l>e obeyed Else what is to be done, if the result of the trial 
fthould be that the property is declared to be mine [the plaintiff's], 
ami then the |>erHon for whom the defmsor acted comes forward 
awl claims to recover the land? will he not be treated as if he had 
not ratified the decision ? Of course if there had been a regular 
procurator, or the principal had personally conducted his own case 
and lost it, then, if he sued me to recover the property, he would 
be barred by an enceptio of res jvdicata, and this is said by 
Julianas (Dig. 50) ; as where the judge declares that the properly 
belongs to me he declares at the same time that it does not belong 
to the other. 3. A guarantee of ratification is required to be 
given by a procurator before litis contestatio : the rule is that 
when ujsue is once joined he cannot be compelled to give the 
undertaking. 4. But in the case of those persons who are not 
required to have a mandate, the proper rule is that, if it should be 
dear that they are taking proceedings against the will of those on 
. Whose behalf they profess to act, they must be refused a hearing. 
' ^Accordingly what is required is not that they should have the 
peat or the instructions [of their alleged principals], but that 
lhall not be shown that they are acting against such alleged 
wishes, even though they should offer to give an under- 




for ratification* 

(on the Bdfat 9) Women are sometimes allowed 
sue on behalf of parents, on due cause shown, for instance 
the parents are prevented by illness or old age, and have no 
to act on their behalf. 

TK SAME (on the Edict 8) Although a procurator caanot 

112 



164 On "Procurators" and "Defemors" [BOOK m 

be appointed in a popular action, still it is very reasonably held 
that, where a man is bringing an action about a public right of way 
and would suffer some private loss or damage by being precluded 
from bringing it, he can appoint a procurator as though it were 
a private action. Much more may a procurator be appointed to 
bring an action for violation of a sepulchre where the principal is 
a person who has the requisite concern in the matter. 1. A pro- 
ctwrator may be appointed to bring an action for injmia under 
the lex Cornelia ; it is true this action is employed with a view 
to the public advantage, still it is a private action. 2. The 
obligational relation which exists for the most part between a 
principal and procurator is one which gives rise to an action on 
mandatum. However in some cases no obligation founded on 
mandatum is contracted ; one such case occurs where people 
make some one procurator on his own behalf [sc. as defendant], 
and promise thereupon that the decree shall be obeyed; if they 
pay anything in pursuance of this promise, they cannot sue the 
procurator on a mandatum, but as vendor, assuming, say, that it 
is a case of sale of an inheritance ; or on the ground of some 
original mcwdatvm, as is the case where a surety appoints as 
procurator the principal debtor. 3. When an inheritance has 
been handed over to any one in pursuance of the Senatusconsultum 
Trebellianum, he can lawfully appoint the heir procurator. 
4. Similarly a creditor can lawfully appoint procurator in the 
Servian action the [debtor himself who is] owner of the property 
pledged for the debt. 5. Add to this that if a eomtitutum has been 
given to one out of several co-creditors, and he appoints another 
of the number procurator to sue on the constitutum, it cannot be 
said that this is not a valid appointment. Again, where there are 
two co-promisors, one may appoint the other procurator to defend 
an action. 6. If there are several coheirs and an action familial 
wciscundce or communi dividundo is brought, it must not be 
allowed that different principals should appoint the same jwo- 
cwrator, because, if it were, it would be impossible to arrange 
the whole scheme connected with vesting orders and dccreen for 
payment; no doubt such an appointment must be allowed where 
one coheir dies and leaves several coheirs who succeed him, 7, If 
the defendant to an action skulks, after litis contestatio, hia sureties 
can only be held to defend his case where one of the number 
defends him in respect of the whole case, or else all or several 1 
appoint one of the number to take over the case. 
1 For gui read quidam. Of. M. 



TIT. in] O n "Procurators" and "J)efmsor&" 165 

43 THE SAME (on (fa Edict 9) A deaf or dumb person is not 
precluded from appointing a procurator in any way in which it 
can be done; perhaps such persons might be appointed for a 
similar office themselves, not, that is, for taking proceedings, but 
for transacting business. L When the question arises whether 
. any particular person is at liberty to employ a procurator, the 
point to consider is whether he is precluded from appointing one, 
as this is a prohibitive Edict. 2. In popular actions, where a man 
takes proceedings merely as one of the public, he is not compellable 
to undertake the defence like a procurator. 3. If a man applies 
for a curator to be appointed to some one who is present, his 
application will not be entertained, unless the minor consents; 
but if the minor is absent, the applicant will have to give security 1 
that he will ratify. 4. Where a procurator declines to act in 
defence, the penalty is that he is not allowed to sue. 5. If 
a procurator brings an action, and there is present a slave of the 
absent principal, then, according to Atilicinus, the undertaking 
ought to be given to the slave and not to the procurator. 
6- Where a man is not compelled to defend some one who is absent, 
nevertheless, if he has given security that the decree shall be 
obeyed, in pursuance of his intention to defend him, he must be 
compelled 2 to undertake the case, because otherwise he would 
be deceiving the person to whom he gave the security, as persons 

'; Who are not compelled [originally] to defend a case are compelled 
after they have given the above security. Labeo holds that 

if -JSStowance may be made on special grounds, and that the rule is 
k if the plaintiff is put to a disadvantage by the lapse of time, 
Other ought to be compelled to undertake the case; but where 
fr connexion by marriage is broken off in the meantime, or the 
men have quarrelled, or the property of the absent man has 
to be taken possession of, 




t; v tFLttANOT (Disputations 7) or he is going tp be at a great 
,/fjpfit^nce, or any other lawful ground occurs, 

$, PATTLTTS (on $e IfcKctf 9) he [the other] ought not to be 
led- Sabinus however holds that it is no business of the 
to require the party in question to undertake the defence, 
action ex stipvlatu can be brought on the ground 
js not defended, and if, on the other hand, he has 
for declining to join issue in the action, his sureties 
t because no impartial arbitrator would decide that 

satisdwre. Cf. M, * Del procurator&m. M. 




166 On "Procurators" and "Defensors" [BOOK in 

a man ought to be compelled to defend a case where he had a 
lawful excuse. Even where the party gave no security, but he 
was trusted on his simple promise on stipulation, the rule is the 
same. 1. Any persons who take proceedings in a public matter, 
under such circumstances that they are protecting some interest 
of their own as well, are allowed to appoint a procurator on cause 
shown, and any one else who takes proceedings after that can be 
barred by an exceptio. 2. If an operis novi nuntiatio (notice of 
novel structure) has been served on a procurator and he resorts 
to the Interdict which says that " no force is to be used with him 
in respect of his building/ 7 then, according to Julianus, he is in the 
position of a defensor, and is not required to give security that 
his principal will ratify, and if he should give such security, 
I cannot see, says Julianus, in what event the undertaking could 
be sued upon. 

16 GAIUS (on the provincial Edict 3) Where a man joins IHRUO 
on his own behalf with a plaintiff, if he should thereafter wiwh to 
appoint a procurator, so that the plaintiff might accept the latter 
as defendant in his place, his application ought to be heard, and 
he ought to furnish security in proper form on 3 the procurator's 
behalf that the judgment will be obeyed. 1. A man who defends 
some one on whose behalf he does not sue is at liberty to confine 
his defence to some one particular matter. 2. A man who takes 
up the defence of another is compelled to give security; as no one 
is regarded as an adequate defensor in another man's case without 
giving security, 3. It is asked further, where a dqfensor under- 
takes the case, and the plaintiff gets an order for restitution in 
integrwn, whether the defensor will be compellable to undertake 
to defend the renewed case ; but on the whole it is held that he 
will. 4. A procurator is bound, as in connexion with the general 
management of business on behalf of a principal, so in connexion 
with the bringing or defending of actions as well, to account for 
everything in good faith; hence whenever he acquires anything 
by means of an action, whether he does so directly in discharge of 
the very claim he made in the action, or indirectly as the result 
of it, he is compellable to hand it over by an action on the 
mcmdatum, so that, in fact, if, owing to mistake or illegality on 
the part of the judge, he should get what was not due, still he 
must give up that too. 5. Again, in the converse case whatever 
the procurator pays in pursuance of a judgment, he ought to 

1 After pro ins, eo. Of. M. 



TIT. ru] On "Procurators" md "JDefmsors" 

recover by means of an action in counter-claim on mwidatom; 
should he however have paid any penalty in consequence of some 
unlawful act of his own, this he has no right to recover. 6. If 
any c<mtH of litigation have been incurred in good faith by the 
prowrutw of either plaintiff or defendant, justice requires that 
they HlwuM be made good to him. 7. Where two persons are 
entrusted by mandate with the management of a man's aflairs, 
ami one of them is a debtor of the person who gave the mandate, 
can the other properly sue such debtor? No doubt he can; he is 
not to IKJ regarded as any the less a procwrcdor because the person 
whom he HUCS is a procurator himself. 

47 JULIANUK (on Urseius Ferox 4) Where a man has left two 
yiWHmtm* of all MB affairs, then, unless he expressly laid down 
that otic WUH to Hue the other for money, he cannot be held to 
have tfivtsn nuch a mandate to whichever chooses to assume it 

48 (JAirs ton tiw provhwUd Edict 3) Accordingly, where he 
has jyjiveii mich a apodal mandate, it follows that if one of the two, 
on lH*mg Hiied by the other, should meet the demand with an 
twt/ttlo such as this : "if no mandate to proceed against debtors 
was given to me, the plaintiff may have a replicatio in the words: 
"or a mandate waa given to me to sue you." 

49 PAULUB (on the Edict 54) A principal ought not to be put 
in a worse position by an act of his procurator of which he has no 
knowledge. 

50 OAIXJH (mi the provincial Edict 22) If your procurator is 
discharged from my demand, in any way whatever, you ought to 
have the benefit of it 

61 ULPIANUB (on the Edict 80) If a person under the age of 
twenty-five should be a dtfenwr, he is not a good defemor in any 
matter in which he has a right to an order for restifatio in inte- 
prwm, because auch an order releases both him and his sureties. 
I, 1 As the position of defaisor carries with it the same liabilities as 
that of principal defendant, no order ought to be made [at the suit 
of wife] on the dqf&nwr of the husband beyond what the husband 
can perform, 2* When a man has undertaken to defend an action 
on another's behalf, then, though he should be of abundant means, 
53 PAUUJS (on fae SduA 57) or of consular rank, 
58 ULPIAHUS (on the Bdiet 60) still he is not held to be 
defending, unless he is ready to give security. 

M. 



168 On "Procurators" cvnd "Defensors" [BOOK m 

54 PAULTJS (on the Edict 50) Women, soldiers, persons who 
are about to be absent on government service, or are afflicted with 
incurable illness, or are about to enter upon a magisterial office, 
or who cannot be made parties to judicial proceedings against 
their own will, are not held to be good defensors. 1. Guardians 
who have managed the affairs of their wards in any particular 
place must be defended in the same place. 

55 ULPiAtftrs (on the Edict 65) When a man is appointed 
procurator on his own behalf his principal will have no prior claim 
to prosecute the action or to receive money [paid by the other 
side] ; since where a man has an available right of action in his 
own name he is the proper person to institute the proceedings. 

56 THE SAME (on the Edict 66) A man who is appointed 
procurator to sue for recovery of some movable has a good right 
to bring an action for production. 

57 THE SAME (on the Edict 74) Where a man appoints a 
procurator to take proceedings at once, he must be regarded as 
allowing him to prosecute the wuit at a later time too. 1. A man 
who abandon an ewceptio founded on an objection to the procurator 
cannot afterwards change his mind and raise it. 

58 PAXTLITS (<w the Edict 71) A procurator who has been 
entrusted generally with the free management of his principal's 
aftaira may call for the payment of debts, novate contracts, or 
exchange one thing for another; 

59 THE SAME (on Plautius 10) and he is also treated as having 
a mandate to pay creditors* 

60 THE SAKE (Response* 4) A general mandate does not involve 
the right to compromise a matter by way of final settlement; 
consequently if after such a mandate the party who gave it declines 
to ratify the compromise, he is not debarred from exercising his 
original right of action. 

61 THE SAME (on Plautiw 1) Plautius says this: "all are 
agreed that, when judgment is pronounced against a procurator, 
he cannot be sued [in an actio jwdicat'i}, unless either he was 
appointed on his own behalf, or else he put himself forward [to 
undertake the defence] knowing that security had not been given." 
The rule is the same even where he puts himself forward to 
undertake the case as a defensor and gives security. 



TIT. ra] On "Procurators" and "Defensors" 169 

62 PoMPOffitrs (Extracts from Plautius 2) If a man who is 
appointed procurator to recover a legacy should sue out an 
Interdict against the heir for production of the testament, he 
cannot be met with an exceptio founded on an objection to the 
procurator on the ground that the application for the interdict 
was beyond his mandate. 

63 MODESTINUS (Differences 6) A procurator as to property in 
general (totorum bonomm) who has a mandate to manage his 
principal's affairs cannot dispose of property, either moTeable or 
immoveable, or slaves, without a special mandate from his principal, 
except fruit or other things such as easily spoil. 

64 THE SAME (Rules 3) If, before joinder of issue, the person- 
on whose behalf some one appears as defensor should himself 
come forward and apply for leave to conduct the case on his own 
behalf, his application should be considered, on special ground 
shown. 

65 THE SAME (heurematica) Where a procurator is absent, 
and his principal desires to relieve him from the necessity of giving 
security, this latter should address a letter to the opposing party 
informing him who it is that he has appointed to act &$ procurator 
against him, and in what matter, adding that he will himself ratify 
anything done to which such procurator is a party ; as, after this, 
the letter being admitted, it will be held that the person mentioned 
appears as procurator for a present principal. Accordingly, though 
the principal should afterwards change his mind and desire that 
the person should not be procurator, still the proceedings in which 
the person acted in that character must be held good. 

66 PAPINIANUS (Questiom 9) A man stipulates to have de- 
livered to him either Stichus or Damas, the choice to be with 
himself; if 1 thereupon Titius brings an action as procurator to 
recover one of the two, and the principal ratifies his doing so, the 
result is that the Court is possessed of the question, and the 
stipulation is superseded. 

67 THE SAME (Re&ponsa 2) If a procurator pledged his own 
faith so as to warrant the title to land which he sold, and after 
that he ceases to manage his principal's affairs, he still will not be 
relieved by the aid of the pnetor from the burden of his obligation ; 
where a procurator undertook to be bound by an obligation on 

1 Del. et before ratum. Of. M. 



170 On "Procurators" and "Defensors" [BOOK m 

behalf of his principal, there is no use his declining to bear the 
burden. 

68 THE SAME (Eesponsa 3) Where a procurator stipulates for 
something on his principal's behalf, consistently with the terms of 
his mandate, the principal cannot 1 sue to recover it without the 
procurator's consent. 

69 PAULUS (Eesponsa 3) Paulus laid down that even where 
a man has appointed a procurator to undertake his defence in an 
action, he is not precluded from appearing in support of his own 
case. 

70 SoaevoLA (Eesponsa 1) A father appointed one Sempronius, 
'his creditor, a guardian to his son, a boy under age; who, after 

discharging the duties of guardian, died, leaving his brother his 
heir; after this, the brother himself died, having bequeathed to 
Titius by way of fdekommissum the debt owed by the father, 
whereupon the heirs [of the brother] assigned their right of action 
to Titius by matidat'im,. I wish to ask this: seeing that the 
liability to the actio tutelce and the right to sue for the money lent 
were both derived from Sempronius's inheritance, is it [not] the 
case that the right of action acquired by assignment is only given 
on the terms of the assignee (Titius) undertaking the defence of 
the heirs by whom the assignment was made? My answer was that 
Titius was bound to undertake the defence mentioned. 

71 PATJLTJS (Sentences 1) An absent defendant can state the 
grounds of his absence through a procurator, 

72 THE SAME (Handbooks 1) The agency of a procurator is 
not merely a method of acquiring a right of action, it sometimes 
enables a man to keep one alive ; for example, where the procurator 
sues a debtor within the statutable time, or where he notifies 
against a novel structure being made, so as to make available the 
Interdict quod vi aut clam, as this is equally a case in which a 
procurator keeps an ancient claim on foot for his principal, 

73 THE SAME (on the office of assessors) If the defendant is 
ready before litis contestatio to pay the sum demanded, what is 
the proper course, where the action is brought by a procurator ? 
It would be unfair that the defendant should be compelled to go 
on with the defence where the result may be that he will pass for 
a person of doubtful character, because he did not offer the money 

1 Before potest ins. non. Of. B. 41. 2. 49. 2. 



TIT. m] On "Procurators" and "Defensors" 169 

62 POMPONITJS (Extracts from Plautius 2) If a man who is 
appointed procurator to recover a legacy should sue out an 
Interdict against the heir for production of the testament, he 
cannot be met with an exceptio founded on an objection to the 
procurator on the ground that the application for the interdict 
was beyond his mandate. 

63 MODESTINUS (Differences 6) A. procurator as to property in 
general (totorum bonorum) who has a mandate to manage his 
principal's affairs cannot dispose of property, either moTeable or 
immoveable, or slaves, without a special mandate from his principal, 
except fruit or other things such as easily spoil. 

64 THE SAME (Rules 3) If, before joinder of issue, the person- 
on whose behalf some one appears as defensor should himself 
come forward and apply for leave to conduct the case on his own 
behalf, his application should be considered, on special ground 
shown. 

65 THE SAME (heurematica) Where a procurator is absent, 
and his principal desires to relieve him from the necessity of giving 
security, this latter should address a letter to the opposing party 
informing him who it is that he has appointed to act as procurator 
against him, and in what matter, adding that he will himself ratify 
anything done to which such procurator is a party; as, after this, 
the letter being admitted, it will be held that the person mentioned 
appears as procurator for a present principal. Accordingly, though 
the principal should afterwards change his mind and desire that 
the person should not be procurator, still the proceedings in which 
the person acted in that character must be held good. 

66 PAPINIANUS (Questions 9) A man stipulates to have de- 
livered to him either Stichus or Damas, the choice to be with 
himself; if 1 thereupon Titius brings an action as procurator to 
recover one of the two, and the principal ratifies his doing so, the 
result is that the Court is possessed of the question, and the 
stipulation is superseded. 

67 THE SAME (Responsa 2) If a procurator pledged his own 
faith so as to warrant the title to land which he sold, and after 
that he ceases to manage his principal's affiiirs, he still will not be 
relieved by the aid of the praetor from the burden of his obligation ; 
where a procurator undertook to be bound by an obligation on 

1 Del. et before ratum. Of. M. 



172 On "Procurators" and "Defensors" [BOOKHI 

come to on the question. 1. If a procurator is appointed to bring 
an action for two things, and he brings an action for one, no 
ewceptio on that ground will be admissible in bar of the action, and 
the matter will be properly before the court. 



IV. 

ON PROCEEDINGS TAKEN ON BEHALF OF ANY CORPORATION 
OB AGAINST THE SAME. 

GAIUS (on the provincial Edict 3) Associations and guilds 
and similar corporations are not allowed to be formed by all 
persons without discrimination; this is a thing which is kept 
within certain limits by statutes and decrees of the senate and 
imperial enactments. It is only in very few kinds of cases that 
such corporate bodies are allowed ; for example, the power of 
constituting a corporation is permitted to partners in government 
vectigalia, as well as in gold mines, silver mines and salt mines. 
Moreover there are at Rome particular guilds whose corporate 
character has been established by senatorial decrees and imperial 
enactments, such as the guilds of bakers and of some others, also 
guilds of shipowners, and these last exist in the provinces as well. 

1. Where any persons are permitted to constitute a corporation iu 
the way of a guild or a company or any other body, they have the 
special right to have, like a municipal body, common property, 
a common chest, and an actor or syndieus by whose agency 
anything that has to be transacted and done on the general behalf 
can be transacted and done accordingly, as in a municipal body. 

2. If nobody defends any action at law against the society, the 
proconsul declares that he will order such common property as 
they have to be taken into possession, and if, after due notice 
given, they do not bestir themselves to defend their case, he will 
order such property to be sold. It is moreover held that there is 
no actor or syndwus even when the actor is [only] absent or 
detained by ill-health or is incapable of acting. 3. If a stranger 
is disposed ^o defend the case of the corporation, the proconsul 
will allow him to do it, in accordance with the rule as to defending 
private person^ because, where this is done, the position of the 
corporation is improved. 



TIT. iv] On proceedings on behalf of a corporation 1*73 

2 ULPIANTJS (on the Edict 8) If the members of a municipality 
or if any corporation appoint an actor to take legal proceedings, 
we must not say that this officer is to be treated as though he were 
appointed by a number of individuals ; he appears on behalf of the 
civic community or the corporation, not on behalf of the constituent 
members separately considered. 

3 THE SAME (on the Edict 9) No one is allowed to take 
proceedings at law on behalf of the body of citizens or of the 
ev/ria, except one who is allowed by some statute, or, in default of 
a statute, is authorized by the members of the curia themselves, 
two-thirds at least of their number being present. 

4 PAULTJS (on the Edict 9) No doubt to make up the number 
of two-thirds of the decurions the person himself whom they 
appoint may be reckoned in. 

5 ULPIANUS (on the Edict 8) One thing Pomponius says must 
be borne in mind, that a father's vote will be allowed on behalf of 
his son and a son's on behalf of his father, 

6 PAULTJS (on the Edict 9) and so will the votes of persons 
under the same potestas, as everybody gives his vote as a decurion 
and not in the character of a member of the household. A similar 
rule ought to be applied in the case of a candidature for a public 
Office, unless it is precluded by some municipal regulation or 
ancient custom. 1. If the decurions have ordered that legal 
proceedings should be set on foot by whomsoever the Duumvirs 
elect, that person is held to be chosen by the body, so that he can 
take the proceedings ; it makes very little difference whether the 
choice is made by the body of decurions itself or by some one 
whom the same body authorized to make it. But if they were to 
make a resolution to this effect, that, whenever any occasion for an 
aeftoti should arise, it should be the business of Titius to sue in 

with it, such a resolution is at once null and void, 
be held that a resolution can give the right to sue 
, a matter which is not yet in dispute. However, 
h* practice is for all matters of this kind to be 
of syndics, ill accordance with the customs of 
2. Suppose a man appointed actor 
tf* 6 by a .Glutton of the decunons, 

I should say 

t '&&' t *tof & fe question is to say thai 
*S W'WV3fy Tbe'tfcld to be valid where such 
'ODO$gi& ^m^ 3> If the actor of a corpora- 




174 On proceedings on behalf of a corporation [BOOK m 

tiou brings actions, he is bound to defend actions too, but he is not 
bound to give a guarantee for ratification. Still sometimes, if 
there is doubt whether the order appointing him was made, 
I should say that a guarantee for ratification ought to be given. 
It follows that the actor iu question performs the function of a 
procurator, and the Edict does not give him an action on the 
judgment, unless he is appointed on his own behalf. He can also 
accept a constitutum. The right to change an actor exists in the 
same cases as that to change a procurator. Even a filiusfamilias 
can be appointed actor. 

7 ULPIAIOJS (on the Edict 10) Just as the prsetor allowed an 
action on behalf of a municipality, so too he thought with great 
reason that the edict should be made to refer to actions against 
one. " I should say too that where a legate has spent money on 
some concern of the municipality, he ought to be allowed an action 
against the municipal body. 1. What is owed to the corporation 
is not owed to the individual members, and what the corporation 
owes the individual members do not owe. 2. In the case of 
decurions and corporations in general, it is of no consequence 
whether the individuals all remain unchanged, or a part only 
remains or all are changed. If the number of corporate members 
conies down to one, it is still held on the whole that this one can 
sue and be sued, as the legal position of the whole number has 
devolved on one person and the appellation of corporation still 
remains. 

8 JAVOLENUS (extracts from Gassiw 15) If town communities 
fail to be defended by those persons who manage their property, 
and there are no corporeal effects belonging to the corporation of 
which possession can be taken by creditors, satisfaction ought to 
be given to the parties suing out of the debts due to the town, 

9 POMPONITJS (on Sabiwus 13) If you are coheir to some one 
along with a municipality, you and the body will have good mutual 
rights of action for division of the inheritance (familice erciseundce). 
The same may be said of an action to determine boundaries, or to 
avert rain-water. 

10 PATTLUS (Handbooks 1) An actor may be appointed further 
for an opens novi nuntiatio, and to enter into stipulations, for 
instance a stipulation for payment of legacies, for making good 
damwwm infecfoim, for one that a decree shall be obeyed, although 
it is true that the assurance should rather be given to a slave of 



TIT. iv] On proceedings on behalf of a corporation 175 

the civic community; still, if it is given to the actor, the manager 
of the property of the community will have an utiMs actio. 

V. 

ON negotia gesta (VOLUNTARY AGENCY;. 

1 ULPIAJTOB (on the Edict 10) This edict is indispensable, 
as it deals with a matter of great importance to absent persons, the 
object being to secure that they shall not, in consequence of actions 
against them being undefended, have their property taken into 
possession or sold to pay their creditors, or pledges sold that 
they have given for debt, or have actions brought against them 
to enforce payment of penal damages, or lose their property 
wrongfully. 

2 GAJUS (on the provincial Edict 3) Where a man volunteers 
to manage the affairs [negotia gerere] of another in his absence, 
even without the party's knowledge, whatever money he spends to 
good purpose on the affiiirs of the other, indeed whatever obligation 
lie incurs towards any one in the interest of the other during his 
absence, be has a right of action on the strength of it; accordingly, 
in the case in question, mutual rights of action arise which are 
called actions on negotia gesta. And, certainly, just as it is 
reasonable that the party himself who managed for the other 
should give an account of his proceedings, and, wherever he 
managed the aflairs in any respect improperly, or kept back any 

' woftfc which he made in the course of the proceedings, should be 
ordered to make compensation in that behalf, so, conversely, it is 
litoo, where he has managed to good purpose, that there should 
ititofe r |ood to him any loss which he incurred or will have to 



fy* #* JW* 10) Tte prater says : " If a 

$*&* & which another is concerned, 01 
was concerned at his death, I will grant an 
iVOI( jg <if ^maji' may be taken thus 'if a 
Qe4 tbat women too can bring action* 
fe^* Actions. 2. The word 'afiairs 
' pae. affirir or to several 3. There 




176 On negotia gesta (voluntary agency) [BOOK in 

follows the word 'another/ and this also applies to both sexes. 
4 There is no doubt, if a ward "manages affairs," that after the 
rescript of the Divine Pius he can in fact be sued to the extent of 
the amount to which he is enriched ; of course, if he himself sues, 
he must allow his liability on the management to be set off. 5. If 
I manage affairs for a lunatic, an action for negotia gesta lies 
against him in my favour ; and, according to Labeo, the curator 
of a lunatic of either sex will have an action allowed him against 
the lunatic. 6. The words "or manages affairs in which another 
was concerned at his death" refer to cases in which the party 
manages after a man's death; it was necessary that the Edict 
should refer to such cases, because he cannot be said to have 
managed affairs for the testator who was already dead, or for an 
[appointed] heir who had not yet taken up the inheritance. If 
there has been any accession of property after the death, for 
instance, there are children of female slaves, or young of cattle, or 
vegetable or other produce or proceeds, or any acquisitions made 
by slaves ; though none of these cases are embraced in the words, 
still they ought to be regarded as included. 1. As this action is 
founded on management executed (negotiwn gestvm), the right as 
well as the liability descends to the heir. 8. If a person who is 
appointed by the praetor to execute a judgment in connexion with ' 
my affairs should deal fraudulently with me, an action will be 
allowed me against him. 9. Labeo tells us that in the action on 
negotia gesta sometimes the only material point is the question of 
'dolus'; if, for instance, you volunteer to act in my affairs, simply 
on the strength of your goodwill to me, to prevent my property 
being sold to pay my debts, it will be absolutely just, he says, 
that you should answer for 'dolus' alone, and this is not an 
unreasonable view. 10. A man is liable to this action not only 
where he meddles with somebody else's affairs and acts in them of 
his own accord, without being driven to it by any pressure, but 
even where he is driven by some pressure or acts on ' the notion 
that there is pressure put upon him. 11. The following question 
is raised in Marcellus (Dig. 2). Suppose I have already made up 
my mind to volunteer to manage something for Titius, and, that 
being the case, you give me a mandate to do the same thing; can 
I have both actions ? To this I should say myself that both actions 
will lie. This is exactly like what Marcellus himself says in 
reference to the case of my proposing to manage some one else's 
affairs and thereupon taking a surety; in this case too, according 
to him, an action will lie against both. 



v] On negotia gesta (voluntary agency) 177 

4 THE SAME (on SaJbinus 45) However, whether in this case 
the surety would not have some right of action is a question to 
consider, but the true rule is that he can bring an action for 
negotia gesta, unless he became surety out of pure bounty. 

5 THE SAME (on the Edict 10) Add that, if I managed for you 
under the belief that I had a mandate from you, this again will be 
perfectly good ground for an action on mgotia gesta, and the 
action on mandatum will not lie. A similar rule applies where 
I become surety for a ilebt owed by you in the belief that I 
had a mandate from you. 1. And if I managed under the idea 
that the aflair concerned Titius when it really concerned Sem- 
pronius, Sempronius alone is liable to an action at my hands on 



6 JULIANUS says '.(Dig. 2) If I manage aflairs of your ward 
without any mandate from you, but to save you from liability on 
the act'io tutelce, this will make you liable at my hands on negotia 
gesta, and so it will your ward, provided, that is, he is enriched by 
it 1. Again, if I lend money to your procurator on your account, 
for him to pay off your creditor with it or to redeem your pledge, 
I shall have a right of action against you op negotia gesta, but 
I shall have none against the man with whom I made the agree- 
ment. Suppose however I take a promise from your procurator 
by stipulation ; it may be said that I still have an action against 
you on negotia gesta, because I added the stipulation in question 
out of extra caution. 2. If a man receives money or anything else 
to bring it to me, then, as he acted in my business, I have a. good 
right of action on negotia gesta against him: 3. We may add that 
if a man has managed my affair with no thought of me, but for the 
sake of gain to himself, then, as we are told by Labeo, he managed 
his own affair rather than mine (and, no doubt, a man who inter- 
venes with a predatory object aims at his own profit and not at my 
advantage) : but none the less, indeed all the more, will such a one 
too be liable to the action on negotia gesta. Should 'he himself 
have gone to any expense in connexion with my affeirs, he will 
have a right of action against me,, not to the extent to which he is 
out of pocket, seeing that he meddled in my business without au- 
thority, but to the extent to which I am enriched. 4. If a man has 
gone to work in such an unintelligent way as to act in his own 
interest in respect of his own property, fencying he was acting 
in mine, there is no ground for an action on either side, in fact 
good faith itself is against there .being any. If he acts in his 

12 



ITS On negotia gesta (voluntary agency} [BOOK m 

own affair and mine too, thinking it is only mine, he will be 
liable in respect of mine ; as, even if I give him a' mandate to 
act in my interest in a matter in which you and I had a joint 
concern, the rule is, according to Labeo, that if he acted in your 
interest too, with his eyes open, he is liable to you on negotia 
gesta. 5. If a man acts in my interest as if he were my slave, when 
he is really my freedman or is freeborn, he will be allowed an action 
on negotia gesta. 6. But if I act in the interest of your son or 
your slave, let us see whether I have not an action on negotia 
gesta against you. For my own part I agree with a distinction 
made by Labeo and approved by Pomponius (b. 26) to the effect 
that if I acted in some matter connected with [your son's or 
your slave's] peculium on your account, you are liable to me ; 
but if I did it out of friendship for your son or your slave, or 
on their account, an action ought to be allowed against the father 
or the owner to the extent of the peculium only. The same rule 
holds even where I thought the person was sui juris. For example, 
if I buy for your son a slave which he does not require, and you 
ratify, your ratification, so Pomponius says in the same passage, is 
inoperative 1 , to which he adds that, in his opinion, even though 
there should be nothing in the peculium, because it is exceeded by 
the amount owing to the father or owner, still an action ought to 
be allowed against the father himself to the extent to which he is 
made the richer by my management 7. If, however, I managed 
affairs on behalf of a free man whom you had in your service bona 
fide as your slave, then, according to Pomponius, if I did it thinking 
he was your slave, I shall have a good action on negotia gesta 
against you in respect of so much of his peeMliwn as has to remain 
in your hands, but, in respect of so much as he has a right to cany 
away himself, I have no action against you, but only against him. 
Indeed, if I knew he was free, I still have a right of action against 
him in respect of so much of the peculium as he can take away, 
and against you in respect of so much as has to remain with you, 
8. According to Pomponius, if I think that a slave belongs to Titius 
who really belongs to Sempronius, and I give money to prevent his 
being killed, I have an action on negotia gesta against Sempronius, 
0. The following question is raised in Pedius (b. 7). I ank Titius, 
without bringing any action, to pay me money, fancying he is your 
debtor, aj&d he pays, though really he is not your debtor, after which 
you hear of the fact and ratify the payment ; can you sue me 
on negotia gesta ? On this point Pedius says there may be some 
1 For agitur read agi tua. Of, M* 



TIT. v] On negotia gesta (voluntary agency) 179 

doubt, because no affair of yours was transacted, Titius not having 
been your debtor. The ratification however, he says, makes the 
affair yours ; the man from whom the money was received has a 
right of action to recover it from the one who ratified [that is you], 
and in the same way the latter will after the ratification have a 
good right of action against me. Thus ratification will make an 
affair yours which originally was not yours, but only managed on 
your account 10. The same writer has this. Suppose I think that 
you are heir to Titius, whereas the real heir is Seius, whereupon 
I sue a debtor of Titius [on your behalf], and I recover the money, 
after which you ratify ; there are then mutual rights of action on 
negotia gesta between you and me. You may say the affair trans- 
acted was none of yours but some one else's ; but this is made good 
by your ratification, the result of which is that the affair transacted 
must be treated as in your interest, and there will be a good here- 
ditatis petitio against you. 1 1. How then, asks Pedius, if I, thinking 
you are an heir, repair a block of chambers belonging to the 
inheritance, and you ratify, do I have a right of action against 
you? To this his answer is No ; by such an act of mine another 
man is enriched, and the thing done is a direct service to some 
one else, and it is impossible that where the act is a direct 
advantage to another this should be held to be a case of manag- 
ing your affair. 12. Let us consider the following case. Suppose 
a man who is carrying on a course of management for another 
has taken steps in respect of some affairs and neglected others, 
but, in consequence of his action, some one else forbore to attend 
to the affairs last mentioned, whereas, all this while, a really 
diligent man, and this is what the party acting may be required 
to be, would have managed the other affairs too, ought we 
to say that the party is liable in an action on negotia gesta 
even in respect of the matters which he did not manage ? This, 
I should say, is the more correct view. Certainly if there is any- 
thing for which he was bound to call himself to account, he 
will beyond doubt be charged with it Granting indeed that it 
cannot be laid to his charge that he omitted to sue other debtors, 
because it waa not in his power to sue them at law, seeing 
that he could not bring any action at all, still he will be charged 
with omission in not getting in his own debt ; and if that debt 
should chance to be one that carried, no interest, interest at 
once begins to be due; so the Divine Pius informed Havius 
Longinus in a rescript, unless, as the Emperor proceeds to say, 
the principal had releaaed the party from the payment of interest, 

122 



180 On negotia gesta (voluntary (agency) [BOOK in 

PAULUS (on the Edict 9) As the office of thejudeoo has just 
the same force in lona fide cases as question [and answer] have 
in a stipulation expressly made to the same effect 

ULPIANUS (on the Edict 10) But if the person who carried 
on the affairs was a person of such a kind that he would not be 
required to show any mandate, he might be called to account for 
not offering to give the debtor a guarantee of ratification, and so 
suing him, assuming that there was no difficulty about giving the 
guarantee. At any rate there IH no doubt whatever about debts 
due from himself; consequently, if he was indebted on some 
ground which would cease to operate at the end of a fixed 
period, and he was (Uncharged [an debtor j by lapse of time, he 
will none the lews be liable to an action on wgotia gesta. A 
similar rule applies to a cane where the heir of a deceased 
debtor would not be liable, as Wfarcclhw tells us. 1. Again, if I 
bring an action to recover land belonging to you or to a city, 
in which I XIHC underhand mean*, but I am acting in your interest 
or in that of the city, and I got by the action a larger sum by way 
of mennc profits than I ought to have got, I shall be bound to 
make over the whole amount to you, or to the city authorities, 
an the eawe may be, though I had no right to KUC for it. 2. If 
it comet* to paw in any way that the judw takes no account of 
some ground of net-off, an <wtfa <sou.tr<trbt can bo brought ; but 
if the wet-oil* is considered and rejected, the better opinion is 
that no <xct'io Mntmrht can afterward* be brought, for the reason 
that the case in decided, and the plaintiff would in that case be 
met by an wMptw of wr judiMta. & Juliamia (b. 8) discusses 
thin cane. There are two partner* of whom one forbids me to 
carry on the management, and the other doeB not forbid me ; 
Hhall I have a right of action on wt/otiu ywta against the one 
who did not forbid me? Hi* difficulty in thin, that if an action 
in allowed againnt thin latter, it 5n impOHHible that the one who 
forbade nhould not be implicated too; however, it is equally 
unjuHt in hiw opinion that the one who did not forbid nhould 
through the act of IUH co-partner encape liability, seeing that, 
supposing 1 wore to lend money to one of two partner** where 
the other partner forbade mo to do HO, I should at any rate 
acquire a legal claim on the former. Accordingly I hold that 
the proper view in that of JuliamiH, that there will ntill be a 
good action on twgotw ge$ta againat the one who did not forbid, 
it being always understood that the one who forbade is not to 



TIT. v] On negotia gesta (volwtfary agency) 181 

incur loss to the slightest degree either through his partner or 
directly. 

9 SoasvoLA. (Questions 3) Pomponius says, if you manage 
some affair of mine, and I approve of what you did, though you 
managed it badly, still you are not liable to me on negotia gesta. 
A point to consider will accordingly be, [as he thinks,] whether it 
is not the case that, so long as it is doubtful whether I am going to 
ratify or not, the right of action on negotia gesta is suspended ; 
indeed, how is it possible for a right of action which has once 
accrued to be put an end to by the bare will [of the party who 
has it]? However, he thinks that the above rule is only true 
where you are clear of all dolus mains. Here Sceevola adds : 
I should rather say that even where I approve, I still have a right 
of action on negotia gesta, and where it is said that you are not 
liable to me, this only means that I cannot disapprove of what I 
have once approved of; and just as anything which has been 
managed to good purpose must needs be treated as if it were 
ratified, when it comes into court, so in like matter must anything 
which the party has himself approved of. Indeed if it is true that 
where I have approved I have no right of action on negotia gesta, 
how will matters stand if the other receives money from my debtor 
and I approve? how am I to recover it from him? Or say he 
sells something of mine; or, again, he lays out money on my 
behalf, how is he to recoup himself? In any case there is no 
mandatum that he can sue on. It is dear therefore that even 
after ratification there will be an action on negotia gesta. 

10 ULPIASOJS (on (he Edict 10) Does the law however go so 
far as to bestow on me a right of action for the expense I have 
incurred ? I should say I have a good right of action, unless it 
was expressly agreed that neither party should have an action 
against the other. 1. But when a man sues on negotia gesta he 
will have the action not only where the management led to some 
result, but it is enough for him if he acted beneficially, even if it 
finally led to no result Accordingly, if he repaired a house that 
was in danger of falling, or cured a sick slave, be will havd a good 
action on negotia geeta, even if the house, is now burnt or the 
slave is dead: this Labeo approves of. However, according to 
Oelsus, Proculus says in a note on the passage in Labeo that the 
action need not always be allowed [even if the work was effective]. 
Take the case, for instance, of a mam repairing a house which the 
owner had abandoned because he could not afford the expense of 



182 On negotia gesta (voluntary agency) [BOOK m 

it, or one which lie did not think he required. In such a case, 
says Proculus, he is laying a burden on the owner, if we adopt 
Labeo's view, as everybody is at liberty to abandon his property, 
even though it be to escape liability for da/ninum mfectwn. 
However, this opinion of Proculus is rather neatly held up to 
ridicule by Celsus. A man, he says, to have an action on negotia 
gesta must have managed the affair beneficially, but he does not 
manage it beneficially, where he undertakes something which is 
not wanted or which would lay a burden on the householder. 
Similar to the above rule is a remark we meet with in Julianus, 
viz. that a man who has repaired a house or cured a sick slave has 
an action on negotia gesta, if he did it beneficially, though no 
eventual advantage should be realized I should like to ask this : 
suppose he thought he did it beneficially, but the householder was 
not really the better for it, how does the matter stand ? I should 
say that in this case ho will not have the action on negotia gesta ; 
as granting that we do not consider the ultimate result, anyhow 
the act ought to be beneficial at the outset. 

POMPON jus (on Qmntus Mnchts 21) If you manage the 
affairs of an absent man without his knowledge, you must answer 
for negligence an well OR deliberate misfeasance. Proculus indeed 
says that sometimes you must answer even for accidents ; for 
example, where you manage on behalf of an absent man some new 
kind of affair which the other was not iu the habit of doing 
himself; for instance buying untrained slaves in the market, or 
entering upon any more or loan complicated business ; the rule 
being that if any loss remiltB from the business, it will fall on you, 
but gain will go to the absent principal ; however, if, taking the 
whole transaction, gain if* made in some things and loss incxirred 
in others, the absent principal is bound to set off the gain against 
the JOBS. 

ULPIANUS (on the Edict 10) This action must be allowed to 
the successor of a man who died in the hands of the enemy, the 
deceased being the person whoae affairs are in question. 1. More- 
over if I acted on behalf of nome son under potestas, a soldier, who 
died after making a testament, an action must be allowed on the 
same principle : 2. and just as in respect of the management of 
the afl&irs of the living, it is enough that such management was 
beneficial, so it is also in respect of the property left by persons 
deceased, even though the ultimate result should be other than was 
intended. 



v] On negotia gesta (voluntary agency) 183 

IS PAULUS (on the Edict 9) A debtor of mine who owed me 
fifty died, I undertook to be curator of his estate and I spent (as 
curator) ten. After this one hundred were realized by the sale 
of a portion of the property which he left on his death, and I put 
that sum by in a chest; but the money was lost without any 
negligence on my part The question arose whether, on an heir 
eventually coming forward, I had a right to sue him, either for the 
sum of fifty which I had originally lent, or for the ten which I 
spent Julianus says that the essential point to consider is whether 
I had reasonable ground for putting by the hundred, because, 
assuming that what I ought to have done was to pay off what was 
owing to myself and the other creditors who had claims against 
the estate, then I ought to bear the risk of not only the sixty 
(sic) but also of the forty that remained ; however, I might still 
retain the ten which I spent ; in other words I need only make 
good ninety. But if there was reasonable ground for keeping the 
whole sum of one hundred by me, for example, there was a danger 
lest land of the deceased should be forfeited for a government 
debt, or, money having been borrowed on a sea-risk, the penal 
sum payable on failure of the condition should be increased, or 
payment should be demandable in pursuance of an arbitration, 
then, says Julianus, I can recover from the heir not only the ten 
which I spent to preserve the estate, but in addition to that my 
original debt of fifty. 

14 ULPIANUS (on the Edict 10) Where the case is that a 
jttiusfamilias managed aflairs, it will be perfectly just that an 
action should be allowed against the father himself, whether the 
son has a peculium, or he acted so as to improve his father's 
estate ; and if the party was a female slave the principle is the 
same. 

15 PAULTJS (on the Edict 9) Pomponius says (b. 26) that in 
negotia gesta you must always look at the condition 1 of the party 
[whose aflairs are managed] as it is at the outset Suppose, for 
instance, he says, I begin to manage affaire for a boy under age, 
and before I have finished he becomes of age; or I manage 
aflairs for a slave or a jttiwfamilias, and in the course of the 
management he becomes free or sui ywri& as the case may be, 
I have myself always laid down that this is the sounder view, 
except in a case where a man undertakes the matter intending 
to manage a single piece of business, but afterwards undertakes 

M. 



On negotia gesta (voluntary agency] [BOOK m 

eond course of management with a distinct intention at a 
i when the other party is already become of full age or free or 
uris : in this case you may say that there are so many different 
of management, so that the action will be governed and the 
is of the order to be made be adjusted in accordance with the 
as of the party. 

THE SAME (on Plaiitim 7) Still, where a man manages 
Irs of mine, there are not a number of different affairs, but one 
,le contract, unless he undertook one particular affair with the 
ntion, when he hud finished that, of going no further ; in such 
LSC as that, if he should alter his mind and proceed to address 
self to another affair as well, there is a fresh contract 



(on the Edict 35) Where a man has carried on a 
ticular course of management while a slave, he is not bound to 

au account of it after he IB manumitted. It is true that if it 
nixed up [with the subsequent matter], so that it is impossible 
tho account of what was done during slavery to be separated 

m that of what the party did in a ntato of liberty, then as a 
ttor of courac tho cane on mandatwm or on negotia gesta will 
npriuc what was done during nlavory an well as the rest. For 
tuncc, suppose a man while still a slave buyn a nitc for building 

1 builds a block upon it, and the block collapses, after which 
in manumitted and leaeH the ground to a tenant, the action on 

yotia genta will embrace nothing more than the lease of the 
;nmd, an no portion of the course of management carried on 
ring the preceding time can l>e brought into the case, unless it 
i something without which it in imponsible to get at a clear 
count of the affairs carried on while the party was free* 

PAXJLUB (on the Kdwt 0) Proculua and Pegasus way that a 
an who began a course of management while he was a slave is 
>und to act in good faith, and that, consequently, whatever sum 
3 would have been able to realise, if norne one cine had been 
lanaging on IUH behalf, he must now, as ho did not make himself 
ay it, make the name BUM good to his principal, if sued on negotia 
tsta, if he had HO much in his pectdium that by retainer of the 
xme tho amount could have been realised. With thin Neratius 
grees* 

THE SAME (on N&ratius 2) However, even if he had nothing 
[\ lu pevulium, still he was indebted by way of natural obligation, 
,nd, if he afterwards had anything, ho was bound to pay himself 



TIT. v] On negotia gesta (voluntary agency) 185 

out of it [as agent], if, [when free] he continued to carry on the 
same course of management ; just as a man who was liable to an 
action which would be barred by lapse of time is compellable, even 
after the period of limitation expires, to make the amount good [to 
the principal], if sued on negotia gesta. 1. Our friend Scsevola 
says that in his opinion the remark of Sabinus that the account 
ought to be given from the beginning must 1 be understood to mean 
that it ought to appear what the available balance was when the 
party managing first became free, not that he is to hold himself 
liable for what is attributable to malice or negligence of which he 
was guilty while a slave ; so that even if it should be discovered 
that when he was a slave he spent money improperly, still he will 
not have to account for it. 2. If some free man serves me as a 
lona fide slave, and I commission him to do something, then, 
according to Labeo, I have no action on mandatum against him, as 
he did not execute the commission of his own free will, but under 
the impression that he was compellable as being a slave; ac- 
cordingly there will be an action on negotia gesta, because it really 
was his desire to act in my interest, and, as a matter of fact, he was 
capable of contracting a legal obligation towards me. 3* Being 
engaged in managing my affairs in my absence, you bought me 
unawares something that was my own property, and you became 
owner by u&us without knowing it ; you are not under any obliga- 
tion to give it up to me enforceable by an action on negotia gesta. 
But if, before the u#ucapio is complete, you ascertain that the 
thing belongs to me, you ought to find some one to sue you for it 
on my behalf, so that he may recover the thing for me, and enable 
you to enforce against your vendor the stipulation against recovery* 
f by the owner (evictio) ; and you are not held to be guilty of any 
dolus malm in finding some one to bring the action, as the reason 
why you have to do it is that you may avoid liability on the action 
on negotia gesta. 4. In the action on negotia gesta the defendant 
has to make good not only the capital but the interest too which 
he derived from the other's money, and even the interest which he 
might have derived. On the other hand by means of this action 
he can recover interest which he has paid, or which he might have 
drawn from money of his own which he spent on the other party's 
affiurs. 5, Titius being in the hands of the enemy, I carried on his 
business, and afterwards he returned. I have a good action on 

1 Transfer deter* to the place before quod, Of* 1C. 

2 After rwn read rtcipiai M. 



186 On negotia gesta (voluntary agency] [BOOK ni 

negotia gesta, although at the time when the affairs were being 
managed, there was no principal in respect of them. 

20 ULPIANUS (on the Edict 10) But if he dies in the hands of 
the enemy, both the direct action and the counter action on negotia 
gesta will be available respectively for and against his successor. 

21 PAULTJS (on the Edict 9) Thin is illustrated by an opinion 
given by Serving, as reported by Alfenus (Dig, 89). Three men 
were taken prisoners by the Lusitani, one of whom was released on 
the understanding that he should bring back a ransom for all three, 
and that, if he did not return, the two others should give a ransom 
for him an well aw themselves On thene facts Scrvius declared that 
justice required that the Prietor nhould allow an action against 
him. L When u man nuurogcH affairs pertaining to the estate 
of a deceased person, he may be naid to impose on the inheritance 
an obligation towards Inmwelf, and himself to incur one towards the 
inheritance ; accordingly, it makes no difference if the person who 
eventually taken up the inheritance should even be a boy under 
age, an the debt in question will devolve on him along with the 
other burdens on the inheritance. 2> If I have begun to carry on 
Titius'n affairs in hin lifetime, I have no right to lot them go at his 
death, but I am not obliged to begin any fresh OUCH, what I am 
bound to do in to carry through matter** already entered upon, and 
to keep hold of any advantage gained. A rule of thin kind fa applied 
when one of two partners dien ; as whenever anything i done for 
the wake of winding tip some previous affair, it w of no connequeuce 
how long it takes to conclude 5t ? the question in when it was begun. 
3. Lucius TitiuB managed affairs of mine in pursuance of a mandate 
from you ; so far as he managed any of them badly, I can bring an 
action against you on negotia yesta^ to compel you not only to 
assign your rights of action against him, but also to make good 
to me whatever harm I may have suffered through his neglect, 
on the ground that you selected an agent without knowing his 
character, 

22 GAIUS (on the provincial Edict 3) Where a man manages 
affairs in the interest either of an inheritance or an individual, and 
buys acme article because he finds it necessary to do HO, then, even 
if the article should be destroyed, he ca recover what he apent by 
an action on negotm gesta ; yuppoee, for example, he gets corn or 
wine for household slave*, and by some accident it comes to be 
destroyed, say by fire or the fall of a house* But of course this rule 
only applies where the fell or the fire itself takes place without any 



TIT. v] On negotia gesta (voluntary agency) 187 

foult of his ; if he is himself liable to an adverse judgment on the 
ground of the very fell or fire, it would be absurd that he should 
recover anything in connexion with things lost in the way de- 
scribed. 

23 PAULUS (on the Edict 20) If a man who is managing affairs 
for another gets in money which was not due, he is compelled to 
hand it over ; and with regard to any payment which he makes 
of what was not due, the better opinion is that he must hold him- 
self accountable for it 

24 THE SAME (on the Edict 24) If I give money to a procurator 
with the intention of making the actual money thereby the property 
of my creditor, the property in it does not pass to the creditor by 
receipt on the part of the procurator ; still the creditor can, by 
ratifying the act of the procwrator, make the money his own, even 
against my will, because the procurator in receiving the money was 
acting on behalf of the creditor only ; accordingly ratification on 
the part of the creditor discharges me of the debt 

25 THE SAME (on the Edict 27) If a man who is managing 
affairs for another spends more than he ought, what he can recover 
from his principal is the sum which he was obliged to give. 

26 MODESTINUS (Responsa 1) A man ordered in his testament 
by &fideicommi$sum that his inheritance should be handed over to 
a particular city ; whereupon the magistrates appointed IStms Seius 
and Gaius as trustworthy agents in respect of the property ; after 
which these agents divided the duties of management amongst 
them ; and this they did without the sanction or consent of the 
magistrates. After some time the testament by which the inherit- 
ance was left in trust to be handed over to the city was proved in 
Court to be void, the consequence being that Sempronius was 
recognised as the statutable heir ab intestate of the deceased ; but 
one of the above-mentioned agents died insolvent and left no heir. 
My question is this : if Sempronius brings an action against the 
agents for this property, on whom is the risk to fall occasioned by 
the want of means of the deceased agent ? Herennius Modestinus 
replied : whatever cannot be recovered in an action on negotia 
gesta from any particular one of the agents in respect of the 
matters which he carried on alone will be so much to the Ipss of 
the person who acquired the statutable inheritance. 

27 THE SAME (Responsa 2) There were two brothers, 0300 of 
whom was of fall age and the other was under twenty-five. They 



188 On negotia gesta (voluntary agency) [BOOK ra 

shared in common land on which there stood no houses, but the 
elder brother erected extensive buildings on a waste which they 
[also] held in common, on which waste there were dwelling-houses 
standing which had belonged to their father; and on making a 
partition with his brother of the waste in question, he claimed to 
be compensated for hiw outlay, on the ground that he had improved 
the property ; his younger brother having by that time arrived at 
statutable age. Hercnnius Modestinua laid down that where an 
outlay was incurred without pressing need but by way of luxury 
the brother on whoso behalf the quotation was asked had no right 
of action. 1. Where Titiua maintained his sister's daughter out of 
natural affection, 1 gave it an my opinion that this afforded no 
ground of action against her. 

18 JAVOLENUS (w;racfe from Camim 8) Where any one has 
managed attaint of SeiuH in pursuance of a mandate given by Titius, 
ho in liable to an action on m(unlatu,m at the hands of Titius, and 
damages inuwt be annexed at an amount representing the interest 
of HeiuH and TitiuH in the matter ; moreover TithiH's interest is 
meaHured by whatever HUIU he IIUH to pay Seiuw, towards whom he 
IB hiniHclf bound on the ground of Mundatum or negotia gesta. 
But Tititirt has a good right of action against the pernon to whom 
lie gave a mandate to manage another person 'H affair**, even pre- 
vioiiHly to bin making any payment himself to [that other, that is] 
his own principal, beeaune lie may be held to be already the poorer 
to the extent of 1 the obligation which he has incurred. 

29 OALUHTJUTUH (monitory Edkt 3) If a father appoints by 
testament a guardian to a pontumouH HOU, and, pending the birth, 
the person HO appointed inanagen the property as guardian, but 
eventually no HOU in born ; in such a case, the proper action 
againnt the guardian in not on tutela, but on wgotia ywta ; but, 
Bhould a potitumouK HOU be born, there will have to be an action on 
tutda^ and thin action will embrace both periods of management, 
viz. the one which endw with the birth of the child, and the one 
subsequent to it 

30 JXTLIANUH (JJiff&tt tf) A question was asked on a statement 
of foct as follows A man was appointed curator, by a resolution 
of a municipal body, for the purchase of wheat ; and another man, 
who was appointed to be under him as a subordinate curator, 
spoilt the wheat by mixing something else with it so that the price 
of the wheat was charged on the cwrator, it being bought for the 

1 For qw roa< l Q u d* VL M. 



am. v] On negotia gesta (voluntary agency) 189 

municipality. The question was what was the action which the 
curator could bring against the stibcurator so as to recoup himself 
for the loss which he suffered through him. The answer given by 
Valerius Severus was that a guardian has a right to an action on 
negotia gesta against his fellow-guardian ; and he added that one 
magistrate is given the same action against another, only however 
where he is not himself privy to the malpractice ; from which it 
follows that the same rule applies equally in the case of a &ub- 
cwrator. 

31 PAPIKIANUS (Responsa 2) A man gave a mandate to a 
freedman or a friend to borrow some money. The lender, on the 
iaith of the written instructions [which constituted the mandate], 
entered into the contract, and repayment was guaranteed by a 
surety. Here, although the money was not spent on behalf of the 
party first mentioned, nevertheless the lender or the surety will be 
allowed an action against him on negotia gesta, modelled, in fact, 
on the actio institoria. 1. Amongst affaire of Sempronius which a 
particular person managed was one in which Titius was interested, 
which the person in question managed without being aware of this 
fact He will be liable to Sempronius in respect of that particular 
matter too, but he has a right to an order, on mere motion, for an 
undertaking to indemnify him in case he is sued by Titius, as the 
latter can claim a right of action. A similar rule applies to a 
guardian. 2. A case being ready for trial, but the defendant 
iailing to appear, a friend of the defaulter volunteered to take it 
up, stating to the Court some reason for the other's absence. The 
friend will not be held guilty of negligence for not appealing if the 
case is decided against the absent man. Note by Ulpianuz : this is 
correct, as the judgment was against the defaulter ; at the same 
time, if the friend, when he defended the absent person, had had 
judgment given against himself, and then were to sue on negotia 
gesta, he might be called to account for not appealing when he 
had an opportunity, a Where a man manages another person's 
aflairs, he is required to pay interest, that is, on the balance which 
he has after discharging necessary expenses. 4. A testator desired 
that certain freedmen should be paid a specified sum with a view 
to the expense of erecting a monument ; if any outlay is made 
beyond this amount, it cannot be lawftdly claimed from the heir m 
an action on negotia getta, nor yet on the ground otfidetowmnfotom, 
as a limit to the outlay was laid down by the testator's expressed 
intention. 5. The heir of the deceased guaordiau of a gal beitag Ids 



190 On uegotia gesta (voluntary agency) [BOOK m 

son and under age, he is not liable in respect of his own guardian's 
management of any affaire of the female ward of his father, but the 
boy's guardian can be sued in his own name in an action on negotia 
yesta. 6. If a mother should be led by natural affection to manage 
the affairs of her son in accordance with the will of his father, still 
she will not have the power to appoint an agent at her own risk to 
take legal proceedings, since she haw herself no right to sue on 
behalf of her won, nor can she dispose of any part of his property, 
nor can she give a discharge to any debtor of the boy by receiving 
payment of the debt 7. One of several [alleged] co-owners of a 
water-course defended a case in which the right to water was in 
question, and judgment wan given in favour of the [owner of the 
alleged Hcrvicntl tenement, ntill the party who defrayed such 
expenBo Jis won necewwirily incurred and was reasonable in respect 
of the common interent luin an action on neyotwt gesta. 



THM HAMB (RrtfwiMM tt; A Hiircty, owing to a mistake which he 
made, took over {by assignment from the creditor] certain pledges 
or bypothckn referring to a different contract in which he was 
himself not concerned, but he paid both debtn to the creditor, 
thinking thut he could provide for being indemnified by consolidat- 
ing hin landed HecuriticH (againHt the debtor). It would be useless 
thereupon jfbr the debtor | to sue him on mandatwn, and equally 
HO for him to Hue the debtor ; but each of the parties must have 
recourne to an action on wtt/otut yexta agamnt the other ; on the 
trial of which negligence alone need be taken into account, not 
accident an well, aw the Hurety <wnot be held to be a depredator. 
The creditor cannot on the ground of the alx>ve be held liable to 
an action founded on pledge {at the hand* of the debtor], for 
reatomtion of the property pledged, m he appears to have sold his 
own legal potation. 1. A mother took presents made to her daughter 
by the man who WiiH betrothed to her, and that without the know- 
lodge of the girl : an in thirt cane the daughter han no action on 
or dvjmitmn, &he can Hue on w.gotia yesfa. 



THE BAMK (Rwpwwa 10) The heir of a deceased huwband 
cannot bring an action againnt the widow for despoiling an inherit- 
ance (wmfjifatw ftwwl'itatw), where during the marriage she had 
the huHband'w property in her poHnesHion, Consequently hfa wisest 
Gourao will l>e to bring an action against her for production (<xd 
whibeMdwri) and on wegotfa yteta, supposing she really managed 
her hu&band'B 



TIT. v] On negotia gesta (volwdcvry agency) 191 

34 PAULUS (Questions 1) Nesennius Apollinaris sends greeting 
to Julius Paulus. A woman managed affaire for her grandson, and 
the grandmother and grandson being both dead, the heirs of the 
former were sued by the heirs of the latter in an action on negotia 
gesta, but the heirs of the grandmother claimed to set off mainten- 
ance given to the grandson. To this it was replied that the grand- 
mother had furnished the maintenance out of her own property in 
compliance with the demands of natural affection ; as she never 
applied for an order to settle the amount to be given for mainten- 
ance, nor was any such order made. Besides this it was said that 
there was an express rule that where a mother supported her child 
she could not sue to recover the cost of maintenance which her 
natural affection had induced her to provide at her own expense. 
To this it was answered on the other hand that this rule would 
fully apply wherever it was shown that the mother afforded the 
support out of her property ; but, in the present case, where the 
grandmother carried on her grandson's affairs, the chances were 
that she had supported him out of his own property. The question 
was entertained whether the expense should be held to have been 
defrayed out of both properties. I wish to know what you think is 
the fairest conclusion. My answer was as follows. This whole 
question turns on matters of fact Indeed I should say that 
even the rule laid down for the case of a mother is not one to 
be observed without exception. Suppose, for instance, she made a 
formal declaration that she was maintaining her son with the 
express intention of bringing an action against himself or his 
guardians. Or take the case of the father dying abroad, and 
the mother, in expectation of his return home, supporting the 
son and the household slaves ; in which case the Divine Antoninus 
Pius laid down that an action should be allowed against the boy 
himself on negotia gesta. Accordingly, the question being one 
of fact, the grandmother or her heirs have, I should say, a good 
right to be heard on an application for leave to set off the cost of 
the maintenance, especially if it appears that the grandmother 
actually entered the items in the account of expenditure. With 
regard to the view that the expense might be held to have been 
incurred out of both properties, that, I should say, is altogether 
inadmissible. 

35 SoaevoLA (Questions 1) A divorce having taken place, the 
[former] husband managed affairs on behalf of the [former] wife ; 
in this case the woman can recover her dos not merely by an action 



192 On negotia gesta (voluntary agency] [BOOK m 

for dos } but by an action on negotia gesta : that is, always provided, 
in the case of the latter action 1 , that the husband had enough 
means to be able to hand over the dos during the time of his 
management ; if not, he cannot be made accountable for not 
charging himself with it. However, even after the loss of his means, 
there will still exist a full right of action against him on negotia 
gesta, though if the husband should be sued in an action for dos, 
the case must be dismissed. But some limit has to be observed in 
the action on negotia gesta, that is to say, the action which asks for 
relief "to the extent of the defendant's means, though he after- 
wards lost them" 2 is only admissible where he was able to pay 
throughout the time of management ; as he was not at once guilty 
of any shortcoming in respect of his duty because he did not 
immediately sell his property to realise the sum required ; in short, 
[to make him in default,] some interval mast be allowed to elapse 
during which he appears to have done nothing. If, in the meantime, 
before the party has completely discharged his duty of management, 
the dotal property is lost, he is as little liable [for it] on mgotia 
gesta as if he never had been able to hand it over at all. Indeed 
even if the husband's means are sufficient, the action on negotia 
cmtu, is [liable to be] disallowed, because there may be a danger of 
their ceasing to bo suiUcienU 1. But wo do not admit the pro- 
position that a man who manages aliiurs of his debtor is bound 
to restore property pledged to himself for debt where the money 
is still owing, and he has not got enough iu his hands [in pursuance 
of the management j to bo able to pay himself. 2, Again a case of 
redhibition is not merged in the right of action on negotia gwta ; 
consequently the adio redUUtona is lost at tho end of nix months, 
if he [, the vendor who managed the affairs of his purchaser, ] did not 
find the slave sold amongst the property of the other, or, supposing 
he did find him, did not find, and so did not recover, such additional 
property as wont with the slave by way of accession, or 'whatever 
was necessary to make up for any fall in the value of the slave, or 
any acquisitions through the slave otherwise than out of the pro- 
perty of the purchaser, there not being enough realised out of the 
actual affairs of tho purchaser under management for tho vendor 
to recoup himself at once. 3. At the same time if the person 
managing the affairs is debtor to the principal on some other 
ground, and the obligation is not liable to fail by lapse of time, 
and he haa ample moans, he cannot be charged with default for not 

* Trarwfor *i* to tho place after gwtix* Of. M. 
s Inverted commas after M. ' Attar facer* im. pom, M. 



TTT. vj On negotia gesta (voluntary agency) 193 

paying this debt, at any rate so long as the claim that he should do 
so is not founded on any ground connected with the question of 
interest The rale is different where a guardian was debtor to 
his ward, as there the ward has an interest in the earlier debt 
being paid, so as to put present debt on the right of action on 
tutela. 

36 PAULXJS (Questions 4) If a free man who is serving me in 
good faith as a slave borrows money and bestows it to my advantage, 
let us consider what is the action by which I can be compelled to 
restore the money so spent to my advantage ; as the man did 
not manage the matter on my behalf as if I were his friend, but as 
if I were his owner. However the proper action to allow is that on 
negotia gesta, and this ceases to be available as soon as the money 
is paid to the lender. 

37 THE SAME (Sentences 1) Where aflairs of a ward have been 
managed without the concurrence of his guardian, [and the party 
managing brings an action,] an inquiry is commonly made at the 
time of litis contestatio as to whether the ward is the richer by 
the matter in respect of which he is being sued. 1. Where a man 
manages for another some pecuniary affair, he is compellable 
amongst other things to pay interest, and to bear the risk of all loss 
on such demands as he has acquired by any contracts he made 
himself, save where, owing to accidental circumstances, the debtors 
have become so destitute of means that at the time of litis con- 
testatio in the action against him they are not able to pay* 
2. Where a father has managed property of his son which the son 
acquired by free gift from the father himself, he will still be liable 
to the son in an action on negotia gesta. 

38 TEYPHONINUS (DisputatMHis 2) A man who owed money 
without interest managed affairs for his creditor. The question was 
'asked whether in an action against him on negotia gesta he could 
be 'made to pay interest on the money referred to* My answer 
was, if it had been his duty [as representing his creditor] to get 
payment of the money from himself [as debtor], then he would be 
bound to pay interest ; but if the time for paying the money had 
not arrived during the period of his management of his creditor's 
affairs, he would not be bound to pay interest ; still, if, the day for 
paying having past, he did not debit himself in the accounts he 
gave to the creditor whose afl&irs he parried on with the sum of 
money which he owed him, he would in justice have to pay interest, 
being sued in a bonajide action. Let us consider then what the 

M. j. 13 



194 On negotia gesta (voluntary agency] [BOOK ni 

scale of interest will be. Will it be the rate which the creditor 
himself could have got by lending the money at interest to someone 
else, or must he pay on the highest scale? the fact is that where a 
man appropriates to his own uses money belonging to someone to 
whom he is guardian or whose affairs he is carrying on, or, say, a 
municipal magistrate does the same with the funds of the munici- 
pality, he has to pay interest on the highest scale, as has been 
enacted by Divine Emperors. Still it is a different case where the 
party did not possess himself of money which was derived from the 
management which he was engaged in, but had borrowed it from 
his friend before he undertook the management of that friend's 
affairs. The persons to whom the above enactments refer were 
bound to exercise good faith without any remuneration, at any rate 
good faith which was absolute and without any profit to themselves, 
consequently, where 1 they arc found to abuse their opportunities, 
they are compeliable to pay interest on the highest scale by way of 
inflicting on them some kind of penalty ; but the person whose 
case we are cltacuSHUig received money by way of loan from the 
other in a straightforward way, and the reason why he may be 
ordered to pay iiitcroHt in nimply that ho did not pay the principal, 
but not that he appropriated money which wji derived from the 
buHiucHB which he was managing. On the other hand it makes 
a groat deal of difference whether money IUIK juwt begun to be owed 
or the claim on the debtor is of some Htamliug, the latter circum- 
wtanco being enough to make a debt bear interest which otherwise 
would not bear it 

9 GAIUS (on verbal obliyat'iom Jt) Anyone who pays on 
another's behalf dincharges the debt, even where the other refuses 
to consent or is unaware of the payment : but money which is 
owing to one man cannot be legally demanded by another without 
the consent of the fh'Ht. In fact both common Heiwe and legal 
principle cntabliwh that you may make another man's condition 
better even without Ian knowledge or againnt hiw will, but you are 
not at liberty to make it worwe. 

10 PAULUB (on Sabinm 10) If I have a houwe in common with 
you, and I give a neighbour security against dmwmi w/evtnm in 
respect of your nhare, the proper view is that if I have to pay 
anything, the action I can bring against you fa rather that on 
gexta* titan coimmni divldwtdo, because it was in my 

1 For gwi road qu,fa f Of, M 



TIT. v] On negotia gesta (voluntary agency) 195 

power to defend my own share without being obliged to defend 
that of my fellow-owner. 

41 THE SAME (on the Edict 30) A man who defends my slave 
in a noxal action without my knowledge or in my absence, can sue 
me on negotia gesta for the whole amount, not merely to the extent 
of the 



42 THE SAME (on the Edict 32) You undertake affairs of mine 
at the request of my slave. If you do this merely at the suggestion 
of my slave, there will be an action on negotia gesta between you 
and me ; but if you do it as on a mandate from my slave, there is 
authority for saying that you can bring an action de peculio et de 
in rem verso against me. 

43 LABEO (Posteriora abridged ly Jcwolemw 6) Whereas 
you paid money on behalf of a man who gave you no mcwidatum 
to do so, you have a good action on negotia gesta, as the result of 
the payment was that the debtor was released from his creditor; 
unless indeed the debtor had some interest in the payment not 
being made* 

44 ULPIANTO (Dispwtatiom 6) Where a man out of friendship 
for the fether applies to have guardians appointed to the children 
tinder age, or takes proceedings for removing guardians of doubt- 
ful character, he has no action against the children, according to 
the enactment of the Divine Severus. 

46 THE SAME (Opinions 4) Where an outlay is made [by a 
voluntary agent] on anyone's affairs, with beneficial result, which 
outlay comprehends expense honourably incurred for the acquisi- 
tion of public offices such as are taken by successive steps, the 
money may be recovered by an action on negotia gesta. 1. Persons 
who have received their liberty by will unconditionally are not 
compelled to render an account of a course of management which 
they carried on in the lifetime of their previous owners. 2. Titius 
paid money to the creditors of an inheritance under the impression 
that his sister had succeeded as testamentary heir to the deceased. 
Although his notion in doing so was thai he was managing the 
affairs of his sister, whereas, as a matter of feet, he had acted in 
the interest of the sous of the deceased,' who were sm Tieredes to 
their father, as soon as the testament wad out of the way ; still, as 
it is only just that he should not be exposed to loss, it was held 
that he could sue for the amount in an action on negotia 
[against the latter]. 

13-2 



96 On negotia gesta (voluntary agency] [BOOK m 

APRICANUS (Questions 7) You commissioned my son to buy 
wid for you ; and being made aware of this fact, I bought it for 
p ou myself. It is, I should say, an essential question what was my 
attention in buying it. If the case was that I made the purchase 
or the sake of supplying you with something which I knew you 
equired, and I also knew your mind to be such that you would be 
jlad to have the land as purchaser, then we have reciprocal rights 
)f action on wgothi {/esta, just aw we should have, supposing either 
there had been no mandate given in the matter, or you had given 
a, mandate to Titian, and I, thinking I could cai-ry the business 
through more conveniently than he coxild, had purchased it myself. 
But if my object in purchasing was to prevent my son being liable 
to an action on utwufatwn, then I should say on the whole that I 
could, an representing my HOW, bring an action on mandatum 
against you, and you in the name way would have an action against 
me tUjwtdio; since, even if TitiuH had undertaken the commis- 
sion, and, to nave him from liability in respect of it, I had made 
the purchase myself, I coxild HUC Tithw on wyotia gesta, and you 
and he could HUO one another on mnudat'ion, The case would be 
the name if you were to tfive my HOII a mandate to be surety for 
you, and I were to be nurely for you myself. 1. Tf the case 
HUffgeHted i& that you gave 'films a mandate to be surety for you, 
and lluit, whcre*u< he wan from Home cause or other hindered from 
being tturety, I, in order to relieve him of his promise, became 
Hurety, then I have a good ritfht of action on nvf/otia {/esta, 

PAULITH O$V/^MW 1) The action on ne(/otia gmta in given 
to whoever han an interest in taking proceeding in that particular 
form* L Whether the action which IH brought by or against the 
party in direct or utH'w in of no importance, nince in the extra- 
ordinary procedure, where the drawing up of formula** is not now 
practised, there is no occasion for wueh niceticK, cHpecially con- 
sidering that both kinds of fiction are of the same force and 
produce the name effect* 

8 PAMNIANXJB ((Jucxtiow 3) If a brother, even without his 
slater's knowledge, by way of acting in her intercut, Htipulates with 
her husband for dos, he can be legally sued by her in an action on 
to compel him to release the husband. 



19 AFEICAHUB (Question* 8) H a dtave whom I noli steals 
Homething from me, his vendor, thereupon the purchaser sells the 
thing, and, BubHeqxiently, it CCMCH to exiBt, an action on 



TIT. v] On negotia gesta (voluntary agency) 197 

gesta must be 1 allowed me for the price, just as it would have to 
be allowed, supposing you had managed some affair thinking you 
were acting in your own interest whereas you really acted in mine; 
or just as, conversely, you would be allowed an action against me, 
if you fancied that some inheritance belonged to you as heir which 
really was mine, and you had accordingly handed over to someone 
else property of your own which the testator had bequeathed; 
seeing that I should thereby be released from the obligation of 
some time or other 8 making the transfer thereof. 1 



VI. 

ON VEXATIOUS ACTIONS. 

1 ULPiAisnas (on the Edict 10) Where a man is alleged to 
have received money in order that he should give trouble or 
forbear to give trouble with a vexatious intent (ccdumnice causa] 
there is a good right of action in faetiwm against him during one 
year for fourfold the sum of money which he is alleged to have 
received; and a similar action after the expiration of the year, for 
the actual sum. 1. According to Pomponius, this action is not 
only good in pecuniary cases but applies to criminal (piiblica) 
charges too, especially considering that a man who takes money 
for giving or forbearing to give trouble with vexatious intent is 
liable to proceedings under the lex repetuMdamm. 2. A man who 
has received money is equally liable whether he received it after 
joinder of issue or before. 3. Moreover an enactment of the 
present Emperor, addressed to Oassius Sabinus, forbids the giving 
of money to the judex or to the other party, whether the case is 
public, private, or fiscal, and, where such an act is done, it lays 
down that the right to proceed is lost It is no doubt a feir question, 
supposing the other party took the money by way of compromising 
the case and not vexatiously, whether the enactment still applies ; 
and I should say it does not, just as the above action itself is gone ; 
there is no prohibition of compromises, but only of vile acts of 

extortion. 4 A man will be deemed to have received money 
even where he received something else instead of money. 

1 For sit read erf. C M, 

9 For quandoque read quando quidem. Of. M. 



198 On vexatious actiom [BOOK m 

PAULUS (on tlw Edict 10) Moreover where a man is released 
from an obligation, this may be regarded as a case of receiving 
money, similarly where money is lent him without interest, or 
property is let or sold under its value. And it is immaterial 
whether ho receives the money himself, or requests that it should 
be given to some one elfie, or ratifies the acceptance of it by some- 
one else on his behalf. 

ULPIANTTS (on the EMct ]<)) Speaking generally, this rule 
applies to all canes where a man gets any benefit at all with a view 
such as described, whether he receive*) it from the other party or 
from someone else. 1. Accordingly, where he took money that 
he might give trouble, he is liable whether he gave trouble or not, 
and equally HO where he took it that he might not give trouble, 
though he gave trouble. 2* The JKdict applies ateo to a man 
who hiiH made a ' tfrpcctitin, 9 which word meant* a dishonourable 
pactwn (agreement), 3. One point to be noted is this. A man 
who haw given money in order that someone should be put to 
trouble haw no action to recover it himself, because his own conduct 
waH (Ifehonourablc ; the action in allowed to the } >erson with respect 
to whom the money wan given with a view to vexatious con- 
HequeneeH to him. Consequently if anyone has money given him 
by you an an inducement to give me trouble, and by me as an 
inducement not to <io HO, he will l>e liable to two actions at my 
haiuln. 



4 (UitrB (on the jmwiHrbtl Edict 4) This action IB not open 
to the heir, because it ought to be enough for him that he hat* an 
action to recover the money which waw paid by the deceased : 

5 ULVIANITH (on the JStlivt 10) but it in good againnt an heir 
to the extent of whatever hun come to hi* hands. It is in fact 
nettled luw that hoi can be compelled to give up dishonourable 
gaina m well SIB the receiver^ though criminal charges would be 
too late; for example, anything given an an inducement ^to falsifi- 
cation (obfatmm), or given to a judge to procure a partial decree 
the heir can be compelled to give tip, a he may anything else 
acquired in a flagitious manner, 1. Bodcta) the above action there 
w also a good right of wMlietio, assuming that the only dishonour- 
able behaviour in the cane is that of the party who receives ; if the 
party who gives in equally guilty, then the one in poHHGttkm is m 
the better case. Supposing then the money fa recovered by a 
cowKetio, in the action above mentioned taken away, or is it to be 



TIT. YE] On vexatious actions 199 

allowed for threefold the amount, or is the action for fourfold 
allowed and the condictio too, as in the case of a thief? I should 
say however that one or other of the two actions by itself is 
enough. But where the condictio is open, there is no occasion to 
allow the action infacfam after the expiration of a year. 

6 GAIUS (on the provincial Edict 4) With regard to the year, 
in the case of a person who gave money to prevent an action being 
brought against him, it begins to run from the day on which he 
gave the money, provided he then had the power of suing to 
recover it. But in the case of a person in respect of whom another 
gave money to procure proceedings being taken against him, it 
may be a matter of question whether the year ought to be reckoned 
from the day when the money was given, or whether it ought not 
rather to be from the day when the party in question knew it was 
given; since a man who does not know of the ground that there is 
for taking proceedings cannot be held to have the power of taking 
them; and the better opinion is that the year is reckoned from 
the day when he first knew. 

7 PAtTLtrs (on the Edict 10) If a man has money given him 
by another as an inducement not to give me trouble, then, if it 
was given in pursuance of a mandate from me, or by my general 
procurator, or by someone who volunteered to act on my behalf 
and whose act was ratified by me, I am deemed to have given it 
myself. But if the other did not give it on my mandate, even 
though he did it out of concern for me to prevent the trouble, and 
I have not ratified, then it is held that the party who thus paid 

'can recover the money and I have the action for fourfold. 
2. Where a publicwius retained a man's slaves, and money was 
paid him which was not lawfully owing, he too is liable to an 
action infactium on the above clause in the Edict 

8 ULPIA3STUS (Opinions 4) If it should be thoroughly proved 
to the proper judge in the case that money was taken from a 
person who was innocent, on pretence made of some criminal 
charge which was not established against him, the judge must 
order the sum thus illegally extorted to be restored, in accordance 
with the terms of the Edict dealing with ihe case of such persons 
as are alleged to have received money as an inducement to give 
trouble or to forbear from giving it; and he must inflict a penalty 
on the guilty party proportionate to his offence. 



200 On vexatious actions [BOOK m 



(021 adulfcris* 2) Where a slave is accused, if 
application is made, he is examined by torture; and, if he is 
acquitted, the accuser is ordered to pay the owner double the 
value of the slave ; besides which an inquiry is made as to vexa- 
tiotis proceeding on the part of the accuser, apart from any 
estimate of the slave'b value ; as the charge of vexatious conduct 
is independent of any question of the loss incurred by the owner 
in respect of the slave in consequence of the torture. 



FOUETH BOOK. 



ON RESTITUTIONS in integrum. 

1 ULPIANTJS (on the Edict 11) The practical character of this 
title need not be dwelt on, it is plain in itself. Under this title the 
praetor gives relief on a number of diiferent occasions to persons 
who have made a mistake or have been circumvented, whether they 
were put to a disadvantage by intimidation, or craft, or their youth, 
or their absence, 

2 PAULXTS (Sentences 1) or a change of status, or excusable 
error. 

3 MODBSTIKUS (Pcwdects 8) Wherever restitution in integrum 
is promised by the praetor it is always on cause shown, so that he 
may examine into the sufficiency of the causes alleged, and see 
whether the particular case 1 is of a kind in which he gives relief. 

4 CALLISTRATUS (monitory Edict 1) I know it is the practice 
of some magistrates not to listen to one who asks for restitution 
in integrum in respect of any very trivial matter or amount, if this 
would prejudge the case of some matter or amount of more 
importance. 

5 PATJLTTS (on the Edict 7) In any case in which the prsetor 
promises that he will give anyone restitution in integrum, no one 
is held to be barred ffrom proceeding in the matterf (nemo videtwr 



6 ULPIABTUS (on the Edict 13) Restitution m wtegrtm may 
be given to the successor on the death not only of a minor, but of 
a man who had been absent on business of the State, indeed of any- 

1 For TWOS read vere MB. Cf. M, 



202 On occasion* of restitution in integrum [BOOK iv 

one who could himself have got such restitution : this has very 
often been laid down. Accordingly whether the applicant is an 
heir, or is a person to whom an inheritance has been handed over 
[in pursuance of a faleiwnnmimim], or is successor to a filius- 
ftiMili<w who was a soldier, he can get restitution. On the same 
principle where minors, male or female, are reduced to slavery, 
their owners will bo granted restitution in intsgwmi, subject always 
to the limitation laid down as to time. Indeed, if it should happen 
that a minor, under the above circumstance**, had been put to a 
disadvantage in respect of an inheritance upon which he had 
entered, then, us we learn from Julianus (I)iff. 17), his owner will 
be allowed to repudiate, not merely in consideration of his youth 
but even without there being his youth in his favour; the fact 
being that patrons of frcedmcu nmy have put their statutable rights 
in practice not with a view to acquiring the inheritance themselves, 
but in order to punish the freedmen. 

7 MAiw'BLLUrt (/>/<7/vtf il) The Divine Antoninus, in a rescript 
addressed to Alitrcius Avitus the pnutoron the question of relieving 
a man who hud lost property through absence, expressed himself 
as fallows: "It is true that no variation should be made lightly 
from the regular practice; still relief ought to bo given where plain 
justice requires it If therefore the party failed to appear when 
culled upon, und thereupon judgment was given in the usual form, 
but he, very shortly afterwards, applied in (Jourt before you had 
risen, it may be supposed that his previous default wan not duo to 
his own negligence, but to the fuel that he did not thoroughly hear 
what the officer wild; accordingly he can have the order for 
restitution/' 1, Aid of this kind is in fact not confined to cases 
Hurh *is mentioned; relief ought to be given to any persons who are 
deceived without fault of their own, especially where there is some 
frawl in the case on the part of their opponent**, an there fo always 
a good right of action for ilolu* mains, and it iw the part of a good 
priutor rather to allow a new trial (rcditwrn littwi), ns both reason 
and jiihtice require, than to compel the party to bring an action 
involving itt/<wu<t, a resource to which recourse ahould be had only 
where the ewe is one which admits of no other remedy. 

8 MAORI! (on wmlx 2} There in this difference between the 
cane of rainon* under twenty-five and that of i>erHowB absent on 
State busing that minors, even where they were defended by 
their guardians or curators, may utill get restitution in inUgnm 
against the Htate (wn. pMic(Wi), of course on due cause shown; 



TIT. i] On occcmons of restitution in integmm 203 

but with regard to persons who were absent on State business, and 
any others who are put upon the same footing, if they were defended 
by their procurators, the practice is that they are only so far 
relieved by way of restitution in integrum as to be allowed to 
appeal 



II. 

ACTS DONE THROUGH FEAB. 

1 ULPIASOJS (on the Edict 11) The praetor says: "Where an 
act is done through fear I will not uphold it." The old terms of 
the Edict were "force or fear." The word force (vis) was introduced 
to express compulsion applied in opposition to the party's will; 
fear (metus) was held to mean mental trepidation on the ground of 
urgent or apprehended danger. But afterwards the mention of 
force was left out for the reason that anything which is done by 
unmitigated force may be held to be done through fear too. 

2 PATJLUS (Sentences 1) Force (vis) is an attack by some over- 
powering agency such as cannot be withstood 

3 ULPIACTJS (on the Edict 1 1) This clause therefore comprises 
both force and intimidation, and where a man has done any act 
under forcible compulsion he can get restitution by this Edict 
1. But by force we understand force which is outrageous and such 
as it is against good morals to use, not force which is rightfully 
applied by a magistrate, that is to say, in piirsuance of established 
law, and the right attached to the office which he bears. Neverthe- 
less, if a magistrate of the Roman people or the governor of a 
province has in any case acted illegally, then, according to 
Pomponius, this Edict will apply to the case; suppose, he says, 
a magistrate should extort money from anyone by threatening him 
with death or stripes. 

4 PAULUS (on the Edict 11) I should say myself that the fear 
of enslavement or any similar evil must be included. 

6 ULPIANTTS (on the Edict 11) Fear, according to Labeo, must 
be understood to mean not simply any apprehension whatever, but 
fear of some evfl of exceptional severity. 

6 GATCTS (on the provwtial Edict 4) The fear which we must 
hold to be referred to in this Edict is not the fear felt by a weak- 



204 Acts done through fear [BOOK iv 

minded man, but such as might reasonably occur even in the case 
of a man of thorough firmness of character. 

ULPIANUS (on tfw Edict 11) Pedius says (b. 7) that this 
Edict does not comprise apprehension of infamia, and that no fear 
of annoyance affords ground for restitution under the Edict. 
Similarly where some nervous person is under groundless appre- 
hension of what is really nothing at all, he will not get restitution 
under this Edict, as no act has been done with force or intimidation. 
1. Again, if a man who is detected in the act of theft or adultery, or 
any other outrageous offence, either gives away property or binds 
himself in any way, Pomponius says very truly (b. 28) that the case 
is within the purview of the Edict, as the man was in fear of death 
or imprisonment. It iw true that it is not always lawful to kill 
an adulterer or a thief, unless he defends himself with a weapon; 
still there was a possibility that such offenders might be killed, 
even though it were not lawful, and so their fear might be well 
grounded. Again, if Huch a one should part with his property to 
avoid information being given by someone who detects him, it 
is held that he may have the benefit of this Edict, because, if 
information were given, he might bo exposed to the penalties above 
mentioned. 

J PAULUS (on the, Edict 11) In Buck a case the party who 
detects no doubt corner under the lex Julia, as lie accepted some- 
thing [as luishmoney] for a detected act of adultery. But the 
prtotor in bound to step in to compel restitution as well; us the act 
of the party receiving is againwt good morals, besides which the 
pnotor docs not concern himself with the question whether the 
man who gave is an adulterer or not, he only looks at the fact that 
the other acquired by putting a person in fear of hi life* 1. If a 
man takes money from me by meanw of a threat to deprive me of 
the written evidence of my status if I refuse to pay, there is no 
doubt that this is an extreme case of intimidation ; at any rate, if 
proceedings arc already pending to establish that I am a slave, and 
there is no possibility of my being pronounced a free man if the 
documents in question are gone. 2. If a man or a woman makes 
a gift to avoid stnpnwi, the Edict applies, inasmuch as to persons 
of character such a fear ought to be worse than that of death. 
3. In the above cases which I said came under the Edict it makes 
no difference whether a man is apprehensive on his own account or 
on behalf of his children ; indeed parental affection makes people 
feel stronger alarm on their children's behalf than on their own* 



TIT. n] Acts done through fear 20$ 

9 ULPIANUS (on the Edict 11) We must take fear to mean 
present alarm, not the surmise that intimidation may be exercised; 
this we find in Pomponius (b. 28) ; what he says is that we must 
understand the meaning to be fear excited in short a case where 
apprehension has been excited by some person. Following this 
up, he discusses this case : Suppose I abandon my land on the 
report that someone is coming to attack me with arms, is this 
a case where this Edict will apply ? To this Labeo, he says, holds 
that it is not; nor is it a case for the interdict unde m ; I cannot 
be held to be ejected by force, as I did not wait to be ejected, but 
took to flight It would be a different case [so, he says, Labeo 
holds] if I only took my departure after an entry was made by 
armed men ; that would really be a case for the Edict. He 
[Pomponius] also says that if the case which occurs is that you 
get together a band of men and build on my land by force, then 
the interdict quod vi aut dam and the Edict under discussion will 
both apply ; because, in short, what makes me allow you to do it is 
that I am put in fear. Again, if I deliver up possession to you, 
owing to the use offeree, this 1 Edict, according to Pomponius, will 
apply. 1, It should be observed that in the Edict the prsetor 
speaks in general terms and in rem\ he does not go on to say by 
whom the act is supposed to be done: consequently, whether it is 
a single individual who excites the fear, or a mob, or a municipal 
body, or a guild, or a corporation, it will be a case for the Edict. 
At the same time, though the prsetor includes the case of any use 
of force, no matter by whom, still Pomponius says, with some nice 
discrimination, that if I accept something from you or induce you 
to bind yourself to something as a consideration for protecting 
you against the violence of enemies or brigands or a mob or 
procuring your liberty, I ought to be amenable to the Edict only 
where I was myself the author of the violence in question; but, if 
I had nothing to do with the violence, I ought not to be amenable; 
I ought rather to be held to have simply received a consideration 
for my services. 2. Pomponius says further that it is well held by 
some that the act of manumitting a slave or of pulling down a 
house, where it is done on compulsion, is one which comes within 
the scope of the restitution provided by this Edict 3. Where the 
prsetor says that he will not uphold the act, let us consider how 
this exactly applies. Now a transaction may in the first place be 
incomplete [in itself], though the party was put in fear; fqr 
instance, take a case where a stipulatidn is made to repay a 
1 Read kuio for hoc. Of. M. 



200 Acts done through fear [BOOK iv 

but no money is thereupon advanced; or, secondly, it may be 
complete, as where, on the stipulation being made, the money is 
advanced, or a debtor who puts his creditor in fear gets thereby a 
formal release of his debt, or there is some similar act which com- 
pletes the transaction. Hereupon Pomponius tells us that where 
the transaction is complete, the party sometimes has a good right 
to use either an cxceptio or an action, but where it is incomplete 
lie can only have an cxceptio. However, I know of an actual case 
in which certain Campanians by putting a man in fear extorted 
from him a written promise to pay money, and a rescript was made 
by the present Emperor to the eftect that the party could apply to 
the pnotor for a restitution hi inteyrim; whereupon the prsetor 
declared, I being present myself, in the character of assessor, that 
if the applicant chose to bring an action against the Campanians, 
such an action waw regular, or, if lie preferred pleading an exceptio 
to an action brought by them, it could be had. We may gather 
from this pronouncement of the Emperor, that whether the act 
is complete or incomplete, an action and an exceptio are both 
equally available. 4, Moreover, if the party wishes, he can have 
an action hi rcm or in pcrsonam, the formal release, or whatever 
kind of diweharge he gave, l>emg rescinded. 5. Julianus (Dig. 3) 
expresses the opinion that when a man has procured delivery of a 
thing by putting iu four, he IB compilable not only to give it back, 
but to give a fonnal undertaking guaranteeing absence of dolus. 
<j. Although however we hold that an action in rem must be 
allowed, because the thing delivered belongs to the party to whom 
force wan applied, still it in not unreasonably held that, if a man 
sues for fourfold damage*, there in an end of the right of action 
in rm; and the converse holds too, 7. The restitution, that is 
in>int(></rMn>to bo ordered in pursuance of this Edict by the judge's 
authority is on thin wine: where delivery of anything was made on 
compulsion (ri), the thing must be redelivered, and, as already 
aaid, an undertaking by stipulation given against dohts> to provide 
for the case of the thing having been deliberately damaged;^ and, 
if there waw a discharge given by way of formal release, the original 
contmctnai relation will have to be re-esteblished; in fact, it goes 
as far aa this, that, according to Juliomw (Dig. b. 4), if it was a case 
of money being owed, and a formal release was procured by force, 
then, unleaa either the money ia paid or the position of debtor and 
creditor is ro-eBtablifched and in pursuance thereof issue is joined 
in an action, the party must be ordered to pay fourfold. ^ Again, it 
I wan compelled by force to promise by way of stipulation, tbere 



TIT. n] Acts done through fear 207 

will have to be a formal release of the stipulation. Similarly, if 
any usufruct or [real] servitude is lost, it will have to be re- 
established. 8. We may add that since the right of action we are 
discussing is expressed in rem, and does not lead to any coercive 
measure being applied to the person himself who exercised force, 
but the praetor's intention is that where anything is done by means 
of intimidation the right should be re-established against all alike, 
there is much reason in a remark made by Marcellus on a passage 
in Julianus, where the latter writer says that, if a surety uses force 
to extort a discharge of the debt by formal release, there will be 
no restitution granted of the right of action against the principal 
debtor, but the surety must be ordered to pay fourfold, unless 
he himself re-establishes the creditor's right of action against such 
principal debtor. Here Marcellus's remark is the more sound in 
law ; the right of action, he says, will be good even against the 
principal debtor, as it is expressed in rem. 

10 GAIUS (on the provincial Edict 4) The following point is 
clear, that if the sureties are formally released through the act of 
a principal debtor who puts [the creditor] in fear, an action may 
be brought against the sureties themselves to make them renew 
their liability. If I give you a formal release of a stipulation, 
being compelled thereto by your putting me in fear, it is within 
the discretion of the judge before whom proceedings are taken 
under the Edict not only to order the obligation to be renewed in 
your individual person, but to make you furnish sureties, viz. either 
the same as before or others uo less substantial, and besides this 
renew any pledges which you gave in the same matter. 

11 PAULTJS (Digest of JuKanw 4 makes this note :) If a third 
person, without any sinister collusion on the part of the surety, has 
used force to procure that a formal release should be given to such 
surety, the latter will not be liable to renew the obligation of the 
principal debtor as well. 

12 UUPIAOTS (on the Edict 11) The other side must restore 
the children of female slaves, the yoxmg of cattle, and produce 
generally, and all accessions (causa} ; this is not confined to produce 
already taken, as, if I could myself have realised more, and I was 
prevented by intimidation, he must make this good too. 1. The 
following question may be raised : sttppoee the party who used 
force himself should have [in returfcj force used towards him; 
is it the intention of the prater that restitution should be ordered 
at his suit under this Edict of those things the property in wltfoh 



208 Acts done through fear [BOOK iv 

he transferred to another? Pomponius says (b. 28) that the praetor 
ought not to assist him : force, he remarks, may be lawfully met 
with force, and thus he suffered the same thing that he inflicted. 
Accordingly, if a man compels you by threats to make him a 
promise, and then I compel him by threats to give you a formal 
release, there is no case for restitution at his suit. 2, Julianus 
says that a man who uses force to make his debtor pay him a debt 
is not liable under this Edict, on account of the nature of the 
action founded on putting in fear, which requires that loss should 
have been inflicted; although it cannot be denied that the creditor 
in question comes tinder the terms of the less Julia de m and has 
lost his right as a creditor. 

3 OALLISTBATUS (on judicial inquiries 5) There is extant a 
decree of the Divine Marcus in these words : " The best course for 
you is, if you think you have any legal demand, to bring it to the 
test of an action*" Here, on Marcianus saying, "I used no violence" 
(vis), the Emperor replied, "Do you think there is no violence 
except whore people are wounded ? It is just as much a case of 
violence wherever it happens that a man who thinks he has a right 
to something demands to have it given up without going to the 
Court Accordingly, if anyone is shown to me to be in possession 
of or to have taken recklessly and without judicial authority 
anything belonging to his debtor, or money which was owing him, 
where it was not given him voluntarily by the debtor, and so to 
have laid down the law for himself in the matter, he shall forfeit 
the right of a creditor." 

L4 ULPTANUB (ou the Edict 11) Again, if I have a perpetual 
wwptio which protects me against your demand, and, that being 
the cane, I compel you to give me a formal release, this Edict does 
not apply? because you have lost nothing. 1. If the party refuses 
to make the restitution, the praetor promises to allow an action 
against him for fourfold : that is to say, four times the whole value 
which ought to have come by way of restitution. The pr&tor deals 
indulgently enough with the party in giving him au opportunity to 
make restitution, if ho wishes to avoid the penalty. After a year 
he allows an action for the simple value, and that not as a matter 
of course, but only on catine shown; 2. an essential point being, in 
the matter of showing cause, that this action IB to be allowed only 
where no other is available, and, certainly, considering that, in 
a case of iwtjwia inflicted by putting in fear, the right of action 
lapses in a year, that is, a year reckoned with allowances (utill$\ 



TIT. n] Acts done through fear 209 

there ought to be some substantial ground to justify this action 
being still available after the expiration of the year. One example 
of there being some other right of action is the following: suppose 
the party to whom force was used is dead ; then his heir may have 
the hweditatis petitio, seeing that the party who used force is in 
possession "as possessor," and, that being so, the heir will not have 
the right of action founded on putting in fear; true as it is that, 
if the year were still running, then the heir himself could bring 
proceedings for the fourfold damages. The reason why the action 
is given to successors is that it includes indemnity (rei habet 
perseoutionem). 3. In this action the question is not whether 
the party who put in fear is the defendant or someone else; it is 
enough for the plaintiff to show that threats or force were used to 
him, and that the result was that the present defendant, although, 
it may be, no charge can be brought against him, still made gain. 
The truth is that fear prevents a man from realising the fects ; 
so that it is with good reason that he is not compelled to point 
out who it was that employed threats or force; accordingly all that 
the plaintiff is compelled to do is this : he must show that 
intimidation was practised with the object of making him give 
someone a formal release for a debt, or deliver property, or in short 
do something or other. And it ought not to strike 1 anyone as 
unjust that one man should be condemned to pay fourfold in 
consequence of an act done by another, because the action is not 
for fourfold at the outset; it is only so where restitution is refused. 
4. This being an "arbitrarian " action, it is open to the defendant 
to make restitution of the thing at any time before the arbiter 
gives his judgment, in accordance with what has already been said, 
and, if he declines to make it, it is agreeable to law and justice 
alike that he should pay fourfold. 5. Sometimes however, even if 
the case is one of intimidation being practised, the arbiter's decision 
allows the defendant to get off. Suppose Titius used threats with- 
out my privity, and property acquired by such means came into 
my hands, but it is now, through no illpractice of mine, no longer 
in existence; will not the judge on motion let me go free? Or 
suppose the property is a slave, and he runs away from me ; if the 
judge makes me give an undertaking that, should the slave get 
into my power, I will give him up, then equally I ought to be 
dismissed from the action, on motion to this effect Accordingly, 
some hold that a bona fide purchaser who acquires from the party 
who used force is not liable, nor a donee or a legatee of the 

1 For videtur read videatur. Of. M. 
M, J. 14 



210 Acts done through fear [BOOK iv 

property. However, Vivianus maintains very correctly that persons 
in these positions are bound just as much, as otherwise I should 
be put to a disadvantage in law by the fact that I was put in fear. 
Pedius too (b. 18) says that the judge's authority in a case of 
restitution is such that he may make an order for restitution on 
a party who used force, though the property has come to the hands 
of another, or on the man to whose hands it has come, though the 
intimidation proceeded from another ; because no man must be 
allowed to derive a benefit from the fact that another put someone 
in fear. 6. Labco says that if a man is compelled by being put 
in fear to contract an obligation, and he furnishes a surety who 
undertakes the office freely, then he and the surety can both be 
discharged; whereas, where the surety alone made the undertaking 
under threats, and not the principal, the surety alone will be 
discharged. 7. What is given fourfold in the value of the matter 
in hand, including produce and all accessions (omwis causa). 
8. If a man engages under duress to appear to an action, and then 
fincln a surety, the nurety will bo discharged as well as the party. 
9* Jf, on the other hand, a man constrains another by duress to 
make him a proiniHo and, on refusing to execute a release, he is 
ordered by the judge to pay fourfold, then, if he sues on his 
stipulation, and is met with an eawptio, Julianus holds that he 
ban a good replicatio, because the fourfold which the defendant 
got includes the simple value. Labco, however, laid down that, 
even after [ho had paid the damages on] the action for fourfold, 
the party who imposed the durena would none the less be barred 
by the axMptio ; but as this appears 1 harsh, it must be so far 
qualified in practice that he is liable to the penalty of being ordered 
to pay threefold, and is also in any case compelled to give a formal 
release. 10. With regard to the above statement that the fourfold 
damages include the simple value, the principle on which the 
different amount** arc assigned is that the order to pay fourfold 
of course embraces the matter itself, and thus restitution thereof 
i& effected, but the penalty is maintained to the extent of threefold, 
11. How will it be if [the property e.g.] a slave is lost or destroyed 
without any malice or negligence in the party who used the duress 
and on whom judgment was passed? In such a case, if the slave 
dies before an action can be brought on the judgment, there will 
be the loss strictness observed as to enforcing the order, for the 
fact that the defendant is compelled to give satisfaction for his 
offence by a threefold penalty. But in the case of a slave who 

1 Head videatur for mdebalar. Of. M. 



TEC. n] Acts done through fear ,211 

appears to have taken to flight, the defendant must be forced to 
give an undertaking that he mil pursue the tnan and give him up 
without fail ; and even then the party who suffered duress will 
retain to the full his right of action m rem, or for production, or 
whatever right of action he may have for recovering the slave, so 
that, if [he] such owner should by any means get the slave back, 
then, if the other party should be sued in pursuance of the under- 
taking, he has an exceptio which is a complete protection. All this 
applies where adverse judgment is already given; but should the 
slave die before the decision without any malice or negligence in 
the defendant, the latter will still be liable 1 ; this follows from the 
words of the Edict, [" If etc.] and such property is not restored in 
pursuance of the judge's pronouncement." Accordingly, if the 
slave has taken to flight without any contrivance or negligence 
in the defendant to the action, he will have to undertake in 
pursuance of the order of the judge that he will follow up the 
slave and hand him over. It must be added that even where 
the property is gone through no negligence of the defendant to the 
action, still, if it would not have been lost at all, supposing he had 
not got it from the other by putting him in fear, he will be liable; 
this agrees with the practice in the case of an Interdict wide m or 
quod vi aut dam. Hence it sometimes happens that a man will 
recover the price of a slave who is then dead, where, if he had not 
suffered duress, he would have sold him. 12. A man who uses 
duress to me, seeing that he gets possession by my act, is not a- 
thief ; though a man who takes by force is a thief with circum- 
stances of aggravation ; so Julianus holds* 13. Where a man 
puts in fear, it is dear that he is liable for dolus too Pomponius 
says the same thing; moreover whichever action is first brought 
would be a good bar to the other, if pleaded by way of etoeeptio 
infactum. 14. Julianus says that the unit which is multiplied 
fourfold is simply the interest which the plaintiff had, so that if a 
man who owed forty in pursuance of a fiddcorwnismm should 
promise under duress to pay three hundred and should pay it, 
he will recover four times two hundred and sixty, as this is th$ 
sum with reference to which the duress waa really operative. 
15. It would follow from this that if several put in fear and an 
action is brought against one only, then, if the latter makes 
restitution without farther compulsion before judgment, they 
all discharged; but, in fact, even if he does not do this, but 



1 For tenebitur will be liable eom* would read non ten&itur trill * be 
liable. Of. M. 

143 



212 Acts done through fear [BOOK iv 

fourfold in pursuance of the judgment, the better opinion is that 
in this case too the action founded on putting in fear is at an end 
as against the others ; 

15 PAULTJS (on the Edict 11) or an action will be allowed 
against the othei*s for the amount by which what is recovered from 
the one falls short of the whole sum due. 

16 ULPIANTJS (on the Edict 11) As for what was above said 
in reference to the case of several persons putting in fear, a similar 
rule holds where the property is transferred to one, but it was 
another that put in fear. 1. Where slaves put in fear, there will 
be a noxal action in respect of the slaves themselves, but an 
[ordinary] action can be brought against an owner [of the slaves], 
into whose hands the property comes ; and if, upon being sued in 
this action, he either gives up the thing, or, in accordance with 
what has been said, pays fourfold, this will relieve the slaves too. 
Tf however, on being wued in a noxal action, he prefers to surrender 
the slaves for noxa, tlm will be no bar to an action against him in 
his own person, if the thing lias come to his hands. 2. This action 
is allowed to the heir of the party wronged, and to his successors 
generally, since it is an action for indemnity. It is allowed against 
heirft or HuccoBHora in general to the extent of what has come 
to their hand* ; which is reasonable, for though the liability to 
a penalty doew not pans to the heir, still an advantage gained by 
dishonourable or outrageous means ought not to be a source of 
profit to the heir ; indeed there IB a rescript to this effect. 

17 PAVL.XTS (Questions 1) Let UH hero consider thin point. 
Where the heir, after something obtained as above haw come to his 
hands, COIIHUIHCH what haw HO come, will he cease to be liable, or 
will the fact that the thing once came make him liable once for 
all? and, if ho dies after consuming it, is there a good right of 
action againnt MB heir, without further distinction, because he 
succeeded to a heritable indebtednefltt, or will no action be allowed 
because nothing caino to the hands of the second heir ? The better 
opinion is that in any case the right of action holds against the heir 
of the heir ; it is enough that the thing once came to the hands of 
the original heir, and the right of action thereupon becomes perma- 
nent. On any other principle we shall have to say that the very 
heir who eomumew what has come to him will not be liable to an 
action* 

18 JTJUAHITS (7>f#, 04) Whore the actual thing which came to 
the party's hands IH lost or destroyed, he is not, in the language 



TTT. n] Acts done through fear 213 

of the law, enriched, but if it is converted into money or some 
other kind of property, there is then no further inquiry to be made 
as to what finally ensues, but the man is held to be enriched once 
for all, though he should after that lose what he got. The Emperor 
Titus Antoninus himself, in a rescript addressed to Claudius Fron- 
tinus on the valuation of things comprised in an inheritance, declared 
that he might very well be sued in a hereditatis petitio on this 
very ground, that, although the things which were originally in- 
cluded in the estate were not in his hands, still, the mere 1 value 
received for the things, seeing that the receipt made him the richer, 
however often a conversion might have taken place in respect of 
the individual objects, bound him just as much as if the actual 
things were still there in their original form. 

19 GAIUS (on the provincial Edict 4) With regard to the fact 
that the proconsul promises an action against the heir to the extent 
only of what comes to his hands, we must understand this to refer 
to the allowance of a perpetual right of action* 

20 TjLPLAtfus (on the Edict 11) On the inquiry how much has 
come to the hands of the heir, we must consider the question with 
reference to the time of joinder of issue, supposing it to be clear 
that anything has come at all. It is the same where something 
so passes into the general bulk of the property of the party who 
used the unlawful force that it is certain that it will come to the 
heir; in short, where a debtor is released. 

21 PATTLTJS (on the Edict 11) Where a freedwoman after being 
guilty of ingratitude towards her patron, knows that this is the 
case, and, being thus in peril in respect of her status, gives or 
promises something to the patron, to avoid being reduced to slavery 
again, the Edict does not apply, because such a case of being put in 
fear is the woman's own act 1. Where any act is done under 
intimidation, the prsetor will not treat any lapse of time as a ground 
for upholding it 2. Where the applicant delivered possession of 
land which was not his own, the unit of which he will recover four- 
fold or the simple amount, as the case may be, with the proceeds, 
is not the value of the land but the value of the possession of it ; 
the subject of valuation is whatever has to be restored, in short, 
what the applicant is kept out of, and that Is, here, the bare 
possession with the produce* Pomponius agrees with this. 3. If 
a dos is promised under intimidation, I should say that no obli- 
gation arises, there can be no doubt that such a promise of <$&8 

1 For quo read gtto$u& Of. M. 



214 Acts done through fear [BOOK iv 

is the same as none at all. 4. If I am compelled through fear to 
give up a purchase or a locatio, it is worth considering whether the 
transaction is null and void, so that the original contract remains, 
or the case is to be treated like that of a formal release, on the 
ground that one cannot in such a case rely on any bona fide 1 obli- 
gation, any such being lost and so ended ; but the better opinion is 
that the case is like that of a fonnal release, consequently there 
is ground for a prsetorian action. 5. If I am compelled by fear 
to enter upon an inheritance, I should say that I become heir, 
because, although I should have declined if I had had liberty of 
action, still, being compelled, I had the will to do it ; however I 
ought to get an order of restitution from the praetor, and to be 
given the power to abstain. 6. If I repudiate an inheritance 
under compulsion, the praetor offers me two kinds of relief; he 
either allows utiles act'iones in which I am put on the footing of 
heir, or else the action founded on putting in fear, so that it is 
open to me to adopt whichever course I choose. 

22 PAULUS (tientmccs 3) Where a man thrusts someone into 
prison in order to extoi*t something from him, whatever act in the 
law in done under the circumstances is of no force. 

23 ULPIANUS (Opinion* 4) It is not likely that a man would 
pay in the city under compulsion and unjustly a Rum which he did 
not owe, if ho showed that he had the rank of illustrious, inasmuch 
as ho coiild appeal to the law of the land, and apply to someone 
endowed with authority, who would at all events have prevented 
him from having to nubmit to violence. The above presumption 
is so plain that in order to have it set aside he must show the 
clearest possible proofs that violence wan used* 1. If a man, 
under well-grounded terror of a judicial inquiry to which a powerful 
opponent threaten** to bring him in chains, sollw, on wuch compulsion, 
fcomothing which he could have lawfully retained, the matter will 
be restored to its rightful position by the governor of the province. 
2. If a money-lender keeps an athlete in unlawful confinement, 
so as to prevent him from engaging in his professional contests, 
and thuB compote him to undertake to pay a larger sum of money 
than ho owes, the proper judge will, on proof of these facts, order 
the matter to be rewtorcd to ita rightful position. 3. When a 
man is forcibly compelled, by the employment of the officers of 
the prcesefy without any judicial proceedings first held, to pay a 
sum of money to ono who claims under an assignment from a 

1 For bonw jfidei toad lona fide. Of. M. 



TIT. n] Acts done through fear 215 

person to whom the man first mentioned never owed the money, 
the Court will order the sum illegally extorted to be restored by 
the party by whom the applicant 1 was wronged. But if he dis- 
charged his actual debts on a bare requisition being made and not 
in consequence of judicial proceedings, then, although the other 
ought to have recovered the money in the way prescribed by law, 
and not in an irregular manner, still it is not according to legal 
principle to reverse transactions which led to the party paying 
amounts which he owed. 



III. 
ON Dolus makes. 

L ULPIANUS (on the Edict 11) In this Edict the prsetor gives 
assistance against shifty and deceitful people who use some kind 
of craft to the prejudice of other persons, his object being to 
secure that the former shall not profit by their cunning and the 
latter shall not be losers by their simplicity. 1* The worcte of 
the Edict are as follows : " where acts are alleged to be done with 
dolus mains, then, if there is no other action available in the case, 
and there appears to be sufficient cause, I will grant a trial" 

2. Dolw malm is defined by Servius as follows : a contrivance 
for the purpose of deceiving someone else in which one thing is 
pretended and another thing is aimed at. Labeo however says 
that it is possible, even without any pretence, for a man to aim 
at circumventing his neighbour ; and it is possible, he thinks, even 
without dolus mafats, for one thing to be aimed at and another 
pretended, as is done by such as seek to promote or protect their 
own or other people's interests by the use of this sort of conceal- 
ment. Accordingly his own definition of 'dolus malm is that it is 
any craft, deceit, or contrivance, employed with a view to circumvent, 
deceive, or ensnare other persons. Labeo's definition is correct. 

3. The praetor was not 'content merely to say dolus, he added the 
word maJm (bad), because the old lawyers used to speak of good 
dolus as well as bad, applying this expression as equivalent to that 
of * ingenious device/* especially where anything was contrived 
against an enemy or a brigand. 4* The praetor's words are :- 
"if there is no other action available in the case/' The prsetor 
does well to offer this action only where no other is open, as afe 

1 For r*i read rf, Of, M. 



216 On Dolus raalus [BOOK iv 

action involving infamy ought not to be lightly ordered by the 
praBtor if a civil or praetorian one is available by way of which the 
party might proceed ; so true is this that Pedius himself says (b. 8) 
that even where there is an Interdict given which a man can sue 
for, or there is some exccptio by which he can protect himself, this 
Edict will not apply. Pomponius says the same thing (b. 28), and he 
adds this : oven where a man is secured by means of a stipulation, 
he cannot have the action on dolus ; suppose, for example, there 
were a stipulation against dohis* 5. The same writer says further 
that where no action at all can be granted against a man, for 
example, where he lias been induced by dolus malus to promise on 
stipulation under circumstances so dishonouring to the promisee 
that no magistrate would allow an action in pursuance of the 
stipulation, the promisor need not trouble himself to ask for an 
action on dolus mains, because no magistrate would allow an 
action against him. 0. Pomponius also reports that it was the 
opinion of Labco that even where a man can get a restitution in 
intec/mm, the present action ought not to bo open to him ; again, 
that if Home other right of action i lont by lapse of time, still the 
present action ought not to bo allowed, an a man who omits to 
take proceeding in time has himself to blame for it ; unless 
indeed the dolm nwd,m was committed with the very object of 
causing the lapHO to take place. 7- Where a man who has some 
civil or pnotorian right of action merges it in a stipulation and 
then puts an end to it by formal release or by any other means, 
ho can take no proceedings on dolw, because he had a right of 
action of a different kind ; unless indeed it was by means of dolw 
malm that he lo^t the right of action. 8. Tt is not only where 
there in Rome other kind of action admissible against the party 
whose alleged maliciouH practice is the subject of inquiry, 

\ PAITLOT (on the Edict 11) or where the matter in hand 
can be secured by Home means or other against him, 

J IJLPiANtJfcj (on tJw Edict 11) that thin Edict fails to apply, 
thift i equally the case where some other party 

fc PATOUB (on the Edict 11) iw liable to an action [which 
will meet the cafle], or where the matter in hand can be secured 
for mo by proceeding** in which the opposing party is someone 
else. 

5 ULHAOTS (on tJie Xtdfat 11) Consequently, if a ward is 
cheated by Titius, the fact being that his guardian acted in collusion 
with Titius, the ward ought not to have any action on dolm against 



TOT. m] On Dohis malus 217 

Titius, because he has the action on tutela against his guardian, 
by means of which he can recover an amount equivalent to his 
interest. No doubt if the guardian is insolvent, the proper view 
is that the ward can have the action de dolo ; 

6 GATCTS (on the provincial Edict 4) as a man cannot be said 
to have an action open to him at all, when owing to the other 
party's want of means his action is worthless. 

7 ULPIAKTTS (on the Edidb 11) Pomponius somewhat acutely 
interprets the exception signified by the words "if there is no 
other right of action " as expressing the case of its being impossible 
for the matter in hand to be preserved for the person whom it 
concerns in any other way. It cannot be held that there is any- 
thing inconsistent with this view in what is laid down by Julianus 
(b. 4) that where a minor under twenty-five is induced by the 
fraudulent advice of his slave to sell him with his peeuliim, and 
the purchaser manumits him, the minor is allowed an action de 
dolo against the man manumitted, as we must understand the case 
to be that the purchaser is free from dolus, so that he cannot be 
held liable 'on his contract ; or that the sale is null and void, 
assuming that the minor's consent to the sale itself was procured 
by fraudulent manoeuvres. The &ct that in this case the vendor is 
supposed to be a minor is no ground for a restitution in mtegrwn, 
as no such relief is allowed to be given against a manumitted 
person. 1. It follows from the above that where a man can 
take measures to save himself harmless by an action for damages, 
the rule to lay down is that the action de dolo does not apply! 
2. Pomponius indeed says that even if there is only an actio 
popukvriB, the action de dolo is not available. 3. Labeo holds 
that the action de doh ought to be allowed not only where there 
is no other action, but even where there exists a doubt whether 
there is another action or not He mentions the following cases. 
A man who owes me a slave, in pursuance, say, of a sale, or a 
stipulation, makes the slave take poison and then delivers him ; 
or he owes me land, and pending delivery, he imposes a servitude 
on it, or pulls down buildings, or cuts down or roots up trees ; in 
all these cases, according to Labeo, whether he gave me an under- 
taking against dofas or not, an action de dolo is admissible, because^ * 
even if he did give such an undertaking, it is doubtful whether 
there is a good right of action ox* the stipulation. However the 
true view is, that, if an undertaking was given against dolw, there 
is no action de dolo, because there is an action e ttipufoto ; if 



218 On Dolus mains [BOOK rv 

no such undertaking was given, then, in the case of an action ex 
empto, there is no action de dolo, because there is an action ex 
empto, but in the case of an action ex stipulate the action de dolo 
is required. 4. If the bare proprietor of a slave in whom 
someone else lias an usus kills the slave, then, besides the action 
on the lex AqivHia> there is an action for production as well, 
supposing the bare proprietor was in possession when he killed 
the man ; consequently the action de dolo does not apply. 5. Again, 
if a slave is bequeathed by testament, and the heir kills him before 
entering on the inheritance, then, seeing that the slave was de- 
stroyed before he became the property of the legatee, there is no 
action under the lex Aquilia ; but there is no action de, dolo, 
at whatever time he killed him, because there is a good right 
of action ex testamento. G. If your beast does me a damage 
owing to the dohw of a third person, the question arises whether 
I have a good right of action de dolo against the latter. For my 
own part I am satisfied with what we read in Labeo, viz* that, 
if the party who owns the beast is not solvent, the action de dolo 
ought to be allowed, although, if due surrender was made for noxa, 
I do not think the action ought to bo allowed, even for the difference. 
7. Again, Labco tudcs this question : If my slave is in fetters and 
you loose him HO *IH to enable him to run off, have F an action de 
dolo aguinist you ? To thin QumtuH sayn in a note on Labeo, if 
you did not do it out of eompasBion, you are liable for furtim, if 
you did, the proper action is in /Mt'Wfti. 8* A slave produces to 
his owner a person who xuidcrtakes to be responsible for the 
performance of the agreement which the slave makes in consider- 
ation of acquiring his freedom, on the understanding, that when 
the nlave becomes free, the liability is to be transferred to him ; 
but on being manumitted the [quondam] Hlave declines to allow the 
liability to be transferred. Pomponiuw wayn this is ground for an 
action de dolo. But if it is the patron's own faxilt that the obli- 
gation IB not transferred, then, he says, the proper view is that 
the guarantor haw a good exeeptio to bar an action by the patron. 
A difficulty I have is this : how can an action de dolo be given, 
seeing that there is another action open ? It will however perhaps 
be said that inasmuch as, if the patron proceeds against the 
slave's guarantor (reus), the action will be barred by an exceptio, the 
correct view must be that an action de dolo ought to be ordered, 
on the ground that a right of action which can be defeated by an 
exceptio is no right of action at all ; at the same time the patron's 
action is only barred by the exeeptw because he does not choose 



TIT. m] On Dolus malus 219 

to accept the manumitted man himself in the place of the guarantor. 
Of course the man who promised in the place of the slave ought to 
have an action de dolo allowed him against the manumitted man, 
or if the promisor in question should not be solvent, the original 
owner will be allowed such action. 9. If my procurator maliciously 
allows my opponent to get the better in an action, and so my 
case is dismissed, the question may be asked whether I have a 
good right of action de dolo against the party who thus gained the 
day. I should say that I have not, so long as the latter (reus) is 
willing to take over the defence of the case, reserving this exceptio, 
" unless there was no collusion " [with the procurator] ; but other- 
wise an action de dolo must be allowed, assuming, that is, that it is 
impossible to proceed against the procurator, in consequence of his 
insolvency. 10. Again, Pomponius reports that the praetor Csecidi- 
anus refused to allow an action de dolo against one who had 
declared that a particular person to whom a sum of money was to be 
lent was a substantial person ; and in fact the preetor vras justified 
in refusing, as no action de dolo ought to be allowed save in a 
case of gross and plain overreaching. 

8 GAITJS (on the provincial Edict 4) Where however, knowing 
that the party was in an impecunious condition, you, with a view 
to your own gain, declared to me that he was a substantial person, 
an action de dolo will very properly be allowed against you, as you 
gave an untrue recommendation of a person with the intention of 
deceiving me. 

9 ULPIASTUS (on the Edict 11) Where a man declares that 
some inheritance is of very small value, and thereupon buys it from 
the heir, there is no action de dolo, as the action ex vendito will 
suffice. 1. But if you persuade me to repudiate an inheritance, on 
the alleged ground that it will not pay the creditors, or to choose 
some particular slave [in pursuance of a legacy], on the ground 
that there is no better slave in the household, then, I should say, 
an action de dolo must be allowed, supposing you do this with 
intent to deceive. 2. Again, if a testament is kept concealed for a 
long time, in order to prevent its being set aside as * inofficious/ 
but it is produced one day after the death of the [testator's] son, 
the son's heirs can take proceedings against the parties who con- 
cealed it, both under the lex Cornelia aad by an action de dolo. 
3. Labeo says (Posterior**, b, 37), if Tito should maintain that ofl 
belongs to him which as a matter of fed* is yours, whereupon you 
deposit the oil with Seius for Mm to sell it and to keep the 



220 On Dolus malus [BOOK iv 

money until the question is decided between you and Titius which 
of the two the oil belongs to, after which Titius refuses to join 
issue in the action, in this case, seeing that you cannot sue Seius 
either on mandatum or as stake-holder, the condition subject to 
which the goods were put in his hands not having come to pass, 
there will be a good action de dolo against Titius. However 
Pomponius says (b. 27) that the stake-holder can be sued in an 
action prescriptis verfris, or, if he should not be solvent, Titius can 
be sued de dolo, and this appears to be a sound distinction. 4. If 
in pursuance of the judge's intimation in a noxal action you 
surrender to mo a slave whom you had hypothecated to someone 
else, and accordingly you go free ; still you are liable to an action 
de dolo, it being made clear that the slave was really pledged. 
4 a. This action de dolo is noxal, accordingly Labeo says (Prcetor 
peregrinw, b* 30) that, where an action de dolo is granted in 
respect of a slave, it is sometimes de peeulio and sometimes noxal. 
If the matter in connexion with which the dolus was committed is 
one for which an action would be given de pewdio, then an action 
de pewdio will be given in the present case ; if it is one for which 
the action would be noxal, this action will be noxal too. 5. The 
pnotor wan <|uite right in inserting the mention of cause to be 
shown ; Hueh an action in not one to bo allowed without discrimina- 
tion ; for instance, to begin with, if the amount is small, 

10 PAUUJH (on the Edict 11) that is, not more than two awei, 

11 TJkJMANUtf (on the Edict 11) the action ought not to be 
allowed ; L moreover there arc particular classes of persons to 
whom it will not be allowed, for example, children or freed- 
men who dcnire to sue their paterfamilias or patron, the 
reawon being that it involves wfamia. Nor will it be allowed 
to a person of low estate against one of superior rank, for 
example, to one of plebeian sttttm against a man of consular 
rank and acknowledged dignity, nor to a person who is dissipated 
and extravagant, or in any way of amall account, against a man 
who leadw an irreproachable life. Such is Labeo's own opinion. In 
short, it comes to thin, in the case of the perwons mentioned, 
the proper view is that an action nltould be allowed in factrni, 
worded carefully, HO as to include a reference to bonajfides, 

12 PAULXJS (on the Edict 11) because otherwise the persons 
above-mentioned might gain by their own dolus. 

13 ULPIANXTS (on tlw Kdiet 11) But the action de dolo will be 
granted to the horn* of the persons excluded, as well as against the 



TIT. m] On Dolus mains 221 

heirs [of the wrongdoers]. 1. We may add that, according to 
Labeo, one thing held essential when the case is inquired into is 
that no action de dolo is to be allowed against a ward, unless he 
should be sued in the capacity of heir. In my judgment he can be 
sued even on the ground of his own dolus, supposing he is very 
nearly of the age of puberty, especially if he is enriched by the 
transaction ; 

14 PATOUS (on the Edict 11) suppose, for instance, he should 
prevail on the plaintiff's procurator to let the action against him 
be dismissed, or should obtain money from his guardian on lying 
pretences, or should be guilty of any similar fraud which requires 
no elaborate contrivance. 

15 ULPIANUS (on the Edict 11) I should say too that an action 
ought equally to be allowed against a ward on the ground of dolus 
committed by his guardian, if he (the ward) is enriched by it ; just 
as in the same case an exceptio is allowed [to an action by the 
ward]. 1. Whether an action de dolo is allowed against a muni- 
cipal body is not clear. I should say that no such action can be 
allowed on the ground of dolus on the part of such a body ; how 
indeed can a municipal body be guilty of dolw ? Still if anything 
comes to the municipality through the dolus of the agents who 
manage its aflairs, then I should say the action ought to be allowed. 
But proceedings de dolo founded on dolus in the members of a 
cwria are allowed against the individual members themselves. 

2. Again, if anything comes to the hands of a principal through the 
dolus of his procwrator, an action de dolo is allowed against the 
principal to the extent of what comes to him ; of course there is 
no doubt that the procurator is himself liable for his own dolus. 

3. In this action it ought to be specified whose dolus it is by which 
the thing was done which is the subject of the proceedings, though 
in a case of putting in fear it is not required. 

16 PATOUS (on the Edict 11) The prartor also requires that the 
plaintiff should describe what it is that was done with dokts malus; 
the plaintiff is bound to know what is the business in respect of 
which he was overreached, and not to shift his ground in making 
such a serious charge. 

17 ULPIASTUS (on the Edict 11) If several persons act with 
dolus, and one alone makes restitution, all alike are discharged ; 
and if one pays an amount equivalent to the damage suffered! 
I should say so far that the rest are discharged. 1. This action Is 



222 On Dolus malus [BOOK iv 

allowed against the heir and successors in general only to the 
extent of what has come to their hands. 

18 PAITLTJS (on the Edict 11) Moreover in this action the 
discretion of the jxidge comprises a right to order restitution ; and 
if restitution is not made judgment is thereupon given for an 
amount representing what the matter is worth to the plaintiff. The 
reason why no definite limits are laid down as to amount either in 
this action or in the action for putting in fear is that it is desired to 
make it possible, where the defendant is contumacious, that the 
damages which he is ordered to pay should be assessed at the sum 
which the plaintiff declares on oath to represent the amount of his 
interest in the matter ; though, in both cases, the oath may, on 
motion to the judge, be kept within limits by taxation of the 
amount. 1. However, it is not always the case in this action that 
the restitution of the property has to bo left to the discretion of the 
judge ; suppose for instance it nhould be manifest that no restitu- 
tion can bo made, as in a ca&c where a slave was transferred to 
the defendant through dolm malm on his part, and then died, 
and accordingly that the defendant ought to be at once ordered to 
pay a sum representing the amount of the plaintiff's interest in the 
matter. 2. Where the miifriwt in a block of chambers was left to 
a legatee and the bare proprietor sets fire to the block, there is no 
action de dolo, because such a case woxild be a ground for actions 
of other kinds, Ji. In tho case of a man who knowingly lent false 1 
weights for u vendor to weigh out goods with to a purchaser, 
TrebatiuB allowed an action de dolo. Here, nevertheless, if the 
weights lent wore heavier than they were supposed to be, the 
vendor han a vondictio to recover the amount of goods which he 
handed over in excess ; if they were too light, the purchaser can 
sue on law contract to have given him the amount of goods still 
duo ; unless indeed the goods wore sold on the express under- 
standing that the amount to bo delivered should be determined by 
those actual weighty the lender having declared with fraudulent 
intent that hia weights were correct 4. Where a man contrived by 
doku that a right of action should be lost by lapse of the statutable 
period, TrebatiuB said that an action de dolo ought to be allowed, 
not in order that roHtitxition might be made in pursuance of the 
judge's intimation, but that the plaintiff might get damages to an 
amount representing the interest he had in the right of action not 
being lost ; because if the practice were different, it would be a 
fraud on the statute* 5. Whore you promise me a particular slave, 
1 After pondera read t'nfytco. M. 



TIT. m] On Dolus malus 223 

and a third person kills him, it is generally held, and very rightly, 
that an action on dolus malus is allowed [me 1 ] against the third 
person, because you are discharged from my demand ; for which 
reason no action will be granted you on the lex Aquilia. 

19 PAPDSTIAJSTJS (Questions 37) If the surety for a promise to 
deliver some beast kills it before default on the part of the pro- 
misor, then, according to opinions given by Neratius Priscus and 
Julianus, an action de dole ought to be granted against him, 
because, as the debtor is discharged, it follows that the surety is 
freed also. 

20 PATOUS (on the Edict 11) Your slave owed you money, but 
had not wherewithal to pay it, whereupon on your instruction he 
borrowed money from me and paid it to you. Here Labeo holds 
that an action for dolus malus will be granted against you, as, on 
the one hand, the action de peculdo is inapplicable, because there is 
nothing in the peculium, and it cannot be said that there is anything 
spent to the owner's profit (in rem versum), because the owner 
received it in discharge of a debt 1. If you make me believe that 
you had no partnership with the person to whom I am heir, and I 
consequently allow an action against you to be dismissed, according 
to Julianus I shall have a right to an action de dolo. 

21 ULPIAOTS (on the Edict 11) If, on my tendering an oath, 
you swear that you are not liable, and you are let go free, but after 
that you are proved to have committed perjury, then, says Labeo, 
an action on dolus must be allowed against you ; but Pomponius 
thinks that the view to hold is that the use of the oath amounts to 
a compromise, which opinion is upheld by Marcellus (Dig. 8) : if 
you appeal to a man's conscience, you must abide by it (stem 



22 PATOTJS (on the Edict 11) In feet the penalty affixed to 
perjury is enough, 

23 GAIDS (on the provincial Edict 4) If a legatee whose legacy 
is in excess of what the lex Falcidia will allow him to retain 
should, while the heir is still uninformed as to the amount of the 
assets, induce him to believe, either by volunteering to swear or by 
some other deceitful contrivance, that the testator's estate is amply 

t sufficient for paying the legacies in full, and should by that means 
get his own legacy paid in fall, an aetioa is allowed de dolo. 

24 ULPIAKUS (on the Edict 11) If it is contrived by the dolus 
of a man who acts as spokesman in behalf of someone who has 



224 On Dolus malus [BOOK iv 

instituted proceedings for having his freedom established in law, 
that a decision which the Court makes in favour of liberty should 
not be given in the presence of the other party, I should say that 
an action de dolo can be allowed against him at once, because a 
decision once pronounced in favour of liberty is not allowed to be 
reconsidered. 

25 PAXJLUS (on the Edict 11) I brought an action against you 
for payment of money, and issue was joined accordingly, whereupon 
you induced me to believe, contrary to the fact, that you had paid 
the money to my slave or my procurator, and by that means you 
procured that the case should be dismissed, with my consent. The 
question being asked on my side whether there would be an action 
de dolo allowed against you, it was held that such an action could 
not be allowed, because I can have another remedy ; as I can have 
a fresh trial, and if I am met with the exce2>tio of res judicata, I 
shall have a lawful rcpllcatio. 

26 (JAius (on the provincial Edict 4) The proconsul promises 
to allow the action in qucntion against the heir to the extent of 
what comes to his hands, that is to say, the extent to which the 
inheritance IB the richer by the matter in hand when it comes 
to him, 

27 PAU&UH (on tlw Edict 11) or would have been, except for 
his UHC of dolm vutlns to proven! it. 

28 QAiUfl (on tha provhwial Edict 4) Consequently if a formal 
diHchnrge is given you [by meant* of your own dolus]> there will be 
a good action uganwi your heir without more- But if property was 
delivered to you, then, if the tiling delivered is existing at the time 
of your death, there will be an action against your heir, if it is not 
exiHtuiff, there will not. However the right of action against the 
heir will be, in any cane, without limitation of time, as he must not 
be allowed to profit by another man's to. And it is in keeping 
with thiH that an against the person himself who acted with dolus 
an action infacttm must be allowed without limitation of time to 
the extent to which lie is enriched. 

29 PAU&UB (on the Edict 11) Rabinus holds that the heir is 
wed rather on the principle of making good a deficiency (calculi 
ratioiw} than on the ground of malfeasance, and, in any case, he 
docB not incur infamy ; consequently that his liability ought to be 
without limitation of time, 



TIT. 



On Dolus malus 226 



SO ULPIANTJS (<w& fli Edict 11) And where the action is asked 
for against the heir, no special cause need be shown. 

31 PBOOTJLTJS (Epistles 2) If any one induces my slaves to 
abandon possession of property, possession is not lost, but the 
party is liable to an action de dolo malo, if I incur any damage. 

32 SoasvoLA (Digest 2) A legacy per prceceptionewi of a slave 
was made to a son of the testator, with a request that he would 
manumit the slave after a specified interval, if he should have in 
the meantime handed in his accounts to such son and his brothers 
who were coheirs with him. Hereupon the legatee (Le. the son) 
gave the slave his liberty by manumission, viz. by vmdicta, 
before the day mentioned, and before the accounts were rendered. 
The question was asked whether the legatee was liable on the 
fdeicowmis&m at the suit of his brothers to send them in the 
accounts which concerned them corresponding to their respective 
shares in the inheritance. My answer was that as the legatee 
had actually set the slave free, he was not liable on the ground 
of jftdefommisswn ; but if he had hurried on the manumission 
with the object of avoiding sending in accounts to his brothers, 
they could have recourse to an action de dolo against him. 

33 ULWANUS (Opinions 4) A man being in possession of pro- 
perty which he was offering for sale, his opponent instituted 
proceedings against him to determine the question of ownership, 
and, after having thus prevented him from closing with a purchaser 
to whom the property might have been sold, abandoned the action, 
It was held that the party in possession had in virtue of these facts 
a good right of action infaetim to indemnify himself. 

34 THE SAME (on ScMnus 42) If you give me leave to quarry 
stone on your land, or to dig for chalk or sand, and I thereupon go 
to expense in the matter, but you refuse after that to let me take 
anything away, the only action that will apply in the case is that 
on dolus malus. 

35 THB SAME (on the Edict 30) Where a party in whose custody 
a written testament is deposited mutilates or spoils it in any way 
after the death of $ie testator, the person, named heir will have a 
good action de dolo against him. Indeed the persons to whom 
legacies are given will have similar rights of action* 

$6 MABOLANTJS (Rules 2) If two parties both practise dolus 
they cannot thereupon bring actions against one another. 
M. J, 15 



226 On persons under twenty-five [BOOK iv 

37 ULPIANTTS (on Sabinus 44) A thing said by a vendor by way 
of puffing his goods is treated as not said, and as constituting no 
engagement ; and if the vendor said it in order to deceive the 
purchaser, still the proper construction is that no right of action 
results in regard to anything said or promised, but only an action 
de dolo. 

38 THE SAME (Opinion* 5; A debtor causes a letter to be sent 
. to his creditor purporting to come from Titius, in which the request 

is made that lie (the debtor) may be released, whereupon the 
creditor, being deceived by the letter, releases the debtor by means 
of an Aquiliaii stipulation and a formal discharge. If after this the 
letter is shown to be forged or beside the purpose, a creditor over 
twenty-five will have an action de dolo } one under that age will get 
a- restitution in integrum. 

39 AIXJS (on tlw provincial Edict 27) If you offfer yourself to 
Titius [an defendant to an action which he brings] about a thing 
which in reality you do not pcwsosa, your object being that some one 
clue may acquire it by urns, and you give security that the decree 
ahull be obeyed, then, even though the action against you should 
be dismissed, wtill you will be liable for (Mm malm ; this is held 
by 



40 fe'uiMUH ANTiUANtra (on the Edict 1) A man who deceives 
ttomeoue else in order to induce him to enter on an inheritance 
which will not pay the charges on it will be liable for dolus, unless 
it so chance that he waw a creditor himself and the only one ; in 
that cane it in enough that there is an ewwptio of dolm malm in 
bur of any action ou hia part. 



XV, 

ON PEIIBONB UNDER TWENTY-FIVE. 

(on the Edict 11) This Edict the Prsotor pro- 
pounded in deference to natural justice, undertaking by means of 
it the protection of perHonB of immature age. AH are agreed that 
the judgment of perwms of that time of life fa deficient in soundness 
and btreiigth, and exposes them to be taken at a disadvantage in 
many different wayw 1 ; and for this reason the Prater promises 
them IUH support in the present Edict, and his assistance against 

1 Dole mtUtorum insidiis expotitwn, M. 



TIT. iv] On persons imder twenty-five 227 

imposition. 1. The words of the Edict are : "in the case of any 
transaction which I hear to be executed with one under twenty-five 
years of age, I will deal with it according to the circumstances of 
the particular case." 2. It appears then that the Prsetor promises 
assistance to those under twenty-five ; of course after that age it is 
well-known that manly vigour has reached maturity. 3* Accordingly, 
at the present day, up to that age young men are under the guidance 
of curators, and they will not be allowed to take in hand the 
management of their own aflairs, even though they should be such 
as conduct them well. 

2 THE SAME (on the lex Julia et Pa/pia 19) Even the feet of 
having children will not enable minors to get 1 the control of their 
affairs out of the hands of their curators at an earlier time. As for 
what is laid down in sundry statutes that a year is remitted for 
every child, this, as the Divine Severas declares, refers to capacity 
for holding a public office, not to the question of a minor acquiring 
control over his aflairs. 

3 THE SAME (on the Edict 11) Moreover the Divine Severus 
and the present Emperor have construed decrees of consuls or 
presides resembling the above statutes as being made with a 
private object of their own, these Emperors themselves having 
very rarely used their exceptional powers to indulge minors with 
permission to manage their own affairs ; and with this the present 
practice agrees. 1. Where a man makes a contract with a minor, 
and the contract takes effect at some time subsequent to that of the 
minor reaching full age, do we look at the beginning of the trans-* 
action or the end ? The rule is, indeed it has been so enacted, that 
if a man, after reaching full age, confirms what he did when 
under age, there is no case for restitution in integrum. Accoid- 
ingly it is with a nice attention to legal principle that Odsus 
(Epistles b. 11 and Digest b. 2) lays down the law on a point raised 
by a statement of fact as to which he was consulted by Flavius 
Respectus the Prastor. A person under twenty-five years, let us 
say aged twenty-four, had commwced proceedings in an action on 
tutela against the heir of his guardiaa ; ftod what happened there- 
upon waa that the action against the heir, M the case was stated, 
was dismissed, the plaintiff having, before the trial was finished, 
already reached the full majority of twetriy-five years ; whereupon 
a restitution m wtegrwn was asked for, ilJpoa this Celsus gave his 
opinion to Respectus to the effect tha* the qwmdcm minor to 

1 Bead rwipwnt for rwipiat. Of. M. 

152 



228 On persons under twenty-five [BOOK iv 

question ought not, as a matter of course, to get restitution in 
integrum ; it ought only to be given if it were shown that the 
defendant had cunningly contrived to get himself discharged from 
the action at a time when the plaintiff had already reached full 
age ; "and it was not/' he said, " only on the last day of the trial 
that the minor was deceived in this case, but the whole of the other 
party's proceedings were a contrivance for securing that he should 
be discharged from the action only after the plaintiff reached full 
age. 1 ' But Celsus goes on to admit that if there are only slight 
grounds of suspicion that the other party has acted with dolus in 
the matter, the plaintiff ought not to get restitution in integrum. 
2, I know also that there was such a case as the following. A man 
under twenty-five had intermeddled with his fathers inheritance, 
and, having reached full age, he had accepted payment from certain 
debtors to the estate; after which lie applied for an order of 
restitution in intwjmm, in order to be able to renounce the inherit- 
ance. It WJIH tirged on the other side that after reaching full age 
he had confirmed the step which ho took when he was a minor ; 
however we held that he ought to get restitution in integrum, 
having regard to the commencement ; and I should hold the same 
where a minor entered on the inheritance of a stranger. 3. A point 
to consider in whether wo ought to nay that a person is under 
twenty-five years of ago even on his birthday before the very hour 
at which ho was born, so that if he should be imposed on he may 
got restitution. As to this, wince tip to that time he has not 
completed the age in question, the rule is that we must reckon the 
time from moment to moment. Similarly if ho is born on a day 
which is doubled by intercalation (biwe#;to), Oelsus tells us that it 
makes no difference whether he is born on the earlier or the later 
day ; the two days are treated as one, and it is the latter of the two 1 
which is held to be intercalated. 4. We may next consider whether 
relief ought to be given only to persons mi jtwis or to persons 
under poteM(ts too. What causes some hesitation is that if it 
should be said that the Court must go HO far as to relieve one 
under poteshw in respect of a {natter which regards his pecuMvm, 
the result will be that through him we shall be relieving a person 
of fall age as well, that is the party's father, a thing which the 
Prtotor by no means intended ; the Edict promises aid to persons 
under age, not to those of foil age* However I should say myself 
that the moat correct opinion is that of those who hold that a 
who iw under age may have restitution in integrum 
1 Del kalendarum* Of, M. 



TIT. iv] On persons wnder twenty-five 229 

in those cases only in which he has an interest of his own, 
as for example where he is himself bound by some oUigatio. 
Accordingly, if he contracted an obligation by his father's order, 
then his father of course can be sued for the whole amount ; 
and, as for the son, seeing that he can be sued himself, though 
he should be living under potestas, or, even after he should be 
emancipated or disinherited, to the extent of his ability to pay, 
and, in fact, that when he is living under potestas, he can be 
sued upon a judgment even against the will of his father, [con- 
sidering, I say, all this,] he will have a good claim to an order 
for relief, if he should be sued himself. Still, whether this relief 
will at all benefit the father himself, for example in the way in 
which the practice sometimes is to make it a benefit to a surety for 
the son, is a question to consider ; my own opinion is that it will 
not Accordingly, if the son is sued, he can ask for relief, 
(though if the creditor sues the father, no relief is given,) except 
in the case of a loan ; if the son received money by his father's 
order for this object, ie. by way of loan, he is not relieved* 
Similarly, if the son made the contract and was put to a disadvant- 
age, then, if the father is sued de peauMo, the son will not have a 
right to restitution ; but if the son himself is sued, he can get 
the order. I attach no weight to the fact that the son may be 
said to have an interest in possessing a peculium ; the fact is 
the fether has a greater interest in it than the son, although 
there may be a case in which the son has a direct concern in 
it ; for example, where his father's property is taken possession 
of by the revenue department for a debt ; iu which case, by the 
enactment of Claudius, the peculium is to be separated for the 
son's benefit [from the general property of the father]. 5. In 
accordance with the above, even if a JUiafamilias should be taken 
in in respect of her do$, because she consented to her father's 
stipulating, some time after giving the dos> for the return of it 
or finding someone else to stipulate for it, I think she ought to 
get restitution, because the dos is the peculiar patrimony of the 
daughter herself. 6, Where a man under twenty-five has pro- 
cured himself to be arrogated, but he now alleges that he was 
imposed upon in the matter of the arrog&tion, suppose, for 
instance, that he was a person of means, and was arrogated by 
someone whose object was plunder, I should hold that his ap- 
plication for restitution m integrum ought to be entertained, 
7. Where a legacy is given or a jKdefaowwiswm left to a jfHyut- 
under age, [payable] after his father's death, mid be 



230 On persons under twenty-five [BOOK iv 

suffers a disadvantage, in consequence, let us say, of consenting 
to the act of his father in agreeing [with the heir] that no action 
shall be brought for the legacy, it may fairly be said that he has 
a right to institution in integntm, seeing that he has an interest 
of his own on account of his expectation of the legacy, which he 
has a right to receive after his father's death. We may add that 
if a legacy is left him which is personal to himself, for instance, 
a legacy of a military appointment, the rule is that he can get 
restitution in inter/rum, as he has an interest in not being dis- 
appointed hi reHpcct of it, seeing that he does not acquire it for 
his father, but has it for himself. 8* Where a minor is appointed 
heir on condition that Inn father emancipates him within a hundred 
duy, whereupon he ought to inform his father, but he omits to do 
so, though quite able to do it, whereas his father would have 
emancipated him if he had been aware of the facts, the proper 
view in that ho can #et restitution in 'httcyrum, if his father is 
ready to emancipate him. 9. Pompoirius adds that in any case in 
which a fit-wqfamUim would got restitution in respect of a matter 
which rcgardn his pM'ti!ktm, the father himself can on the same 
grounds, in right of the w>n, get leave to be heard after the son's 
death, as if he were heir to IUH sou. 10. But in the case of a 
JilhwfiMttliaH who haw a wwtreme iwiwJhim, there is no doubt 
at all that, in renpect of matters which touch the caxtrcnse 
jwvulium, he him a right to restitution in integnm, on the ground 
that it in Inn own patrimony in regard to which he lias been put to 
a dfaad vantage. 11* A nlave under twenty-five cannot get restitu- 
tion under any circumHtanecH, as it fa the person of his owner that 
is taken into eonnidoration, and the latter muwt reckon it his own 
folly, if he entrusted the matter to one under age. Hence even if 
he contnictn through a boy under the age of puberty, the same rule 
applies, an Mareelhw hinwelf Hayw (/-%. 2). Again, if a slave under 
age Hhoulci be allowed the free disposition of his peculium, an 
owner of full a#e will not on the strength of that fact get 
roRtitution. 

AFKIOANUH (Qwtiiow 7) The reanon is that whatever the 
ve tniWHactK under thene circumHtaucen he in to be regarded as 
transacting with tho consent of the owner. ThiB will come out 
more clearly if the qucRtion arises in connexion with an institorian 
action, or the cane in one in which a person over twenty-five years 
of age eommtottioned a minor to transact some piece of business 
and the party ao commteflioned wan deceived in the matter. 



orr. iv] On persons under twenty-five 231 

5 ULPIAKUS (on the Edict 11) If however the slave was one 
who had a claim to immediate manumission in pursuance of a 
fideicommissvm, and he is taken In, then, seeing that default is 
made in the matter to his prejudice, it may very well be said that 
the praetor is bound to come to his aid* 

6 THE SAME (on the Edict 10) Persons under twenty-five 
years of age are relieved by restitution in inteffmm, not only 
where they suffer some loss of property, but also where they 
have a personal interest in not being worried with litigation and 
expense. 

7 THE SAME (on the Edict 1 1) The praetor's words are, " any 
transaction which I hear to be executed" The word " transaction " 
(gestum) is applied irrespective of the precise circumstances, it 
may be a case of contract, or of something else. 1. Accordingly, 
where a minor buys, or sells, or enters into a partnership, or borrows 
money, if he is put to a disadvantage he will get the assistance. 
2. Again, if money is paid him by a debtor, either of his father's 
estate or his own, and he loses it, the proper view is that he will 
get the relief, on the ground that the transaction was with himself. 
Accordingly, if a minor sues a debtor, he ought to have curators 
with him, if he wants to have the money paid him ; otherwise the 
defendant will not be compelled to pay it him. However, the 
present practice is for the money to be deposited in a temple^ as 
Pomponius mentions (b, 28), (for fear lest either the debtor should 
be burdened with the payment of excessive interest, or the creditor 
who is under age should lose his money), or else for payment to 
be made to the curators, if there are any. There is in fact 
Imperial legislation on the subject which allows a debtor to compel 
a person of immature age to apply to have curators appointed. 
However, what is to be said in case the prsetor orders the money 
to be paid to the minor without curators, and the party pays ? 
will the latter be sure of protection? This point is not quite 
clear ; however, 1 should say that if he was compelled to pay after 
alleging that the other was under age, he cannot be made respon- 
sible any further ; unless indeed it is suggested that the proper 
course for him is to appeal on the grotmd that the praetor's order 
was a legal wrong. But I do not believe that if a minor asked for 
restitution in integrum under these circumstances the prsetor would 
give him a hearing. 3. A minor is not relieved in the above cases 
only, but also where he intervenes as a third party, for instancy 
where he binds himself or pledges hid property in the character of 



232 On persons under twenty-five [BOOK iv 

surety. On this point Pomponius appears to agree with those 
who distinguish between the case of the person in question being 
approved of by an arbiter appointed for the special purpose of 
judging of proposed sureties and the case of his being simply 
accepted by the other party. But I should say that a person 
ought to get relief irrespective of this distinction, if he is really a 
minor, and shows that he has been overreached. 4. Belief is also 
given in connexion with trials at law whether the party who 
nuftbred a disadvantage was plaintiff or defendant. 5. Again, if 
a minor has taken up an inheritance that is more unprofitable than 
he thought, aid is given him so as to enable him to renounce it ; as 
tliis is a clear cane of being put to a disadvantage. The same 
rule applies to a bimorum jtosMwio or any other form of succession. 
Not merely a MOU who haw intermeddled with his father's estate, 
but any member of the household whatever who is under age can 
got an order of restitution ; for example, a slave who should be 
appointed heir and given IHB litety ; the proper view being that, 
if he intermeddled, he can be relieved in consideration of his 
immature ago, and HO be enabled to keep hi own property separate. 
Of coimtCy when a person gets rentitution after ho has entered on 
the inheritance, he is bound to make good any part of the estate 
which ho can follow into hiw own property and which has not been 
lent or dcHtroyed through his youth and inexperience. 6. According 
to the proHont practice it in well CHtabliwhed that minors are relieved 
even where they urc disappointed of profit. 7. Pomponius indeed 
wayn (b. $ti) that if a man declines a legacy, even without ill- 
practice on any OIIO'H part, or IH unlucky in respect of the legacy 
of an option, because lie cliooHOH tho worse of two things, or 
promiHGH Homeono to give him one or other of two things, and 
thereupon given the one which if* the more valuable, he has a 
right to relief; and m a matter of fact relief ought to be given. 
8. In consequence of the view being held that minora have a 
claim to relief oven where they arc dfaappointed of profit, the 
quention ban been staked whether, Bupponmg something belonging 
to the minor in Hold and there is a portion forthcoming who is ready 
to make a bettor offer, tho minor will get restitution in integrwm, 
in eottBidoration of the gain which he missed. As to this it is 
quite a common thing for the prater to grant the order, so as to 
allow the bidding* to be opened ; and he does the same thing in 
tho case 0f property which ought to be kept unsold in the interest 
of minors. But it should be done with circumspection ; otherwise 
no one would have anything to do with purchasing the property of 



TIT. iv] On persons twwter twenty-five 233 

wards, even if the sale were in good faith. And it is a rule which 
deserves thorough approbation that, in respect of things which are 
exposed to unforeseen mischief, a minor has no claim to relief 
against a purchaser, unless a case of corrupt behaviour or clear 
partiality is shown on the part of a guardian or curator* 9. If, 
after getting the order, he intermeddles with the inheritance, or 
enters on one which he had declined, he can thereupon get an 
order once more to enable him to give it up ; there are rescripts and 
responses to this effect. 10. But with regard to the remark of 
Papinianus (Resp. 2) to the effect that if a slave is substituted to 
a minor as compulsory heir, then, if the minor declines the inherit- 
ance, such slave will be compulsory heir, and, if the minor after 
that gets an order for restitution, will notwithstanding remain free, 
but, if the minor enters on the inheritance and then gives it up, 
the slave who was appointed substitute to him, with liberty, cannot 
become heir nor be free, this is not altogether accurate. If the 
inheritance will not pay the debts, and the heir [appointed in the 
first place] declines to take it, then the succession goes to the 
substituted compulsory hpir, as both the Divine Pius and the 
present Emperor laid down by rescript ; speaking, as a matter of 
fact, of the case of a boy under fourteen being appointed heir who 
was a stranger to the family. When Papinianus goes on to say 
that the quondam slave remains free, this seems to imply that he 
does not remain heir too, [I am speaking of the case] where the 
boy under age gets an order for restitution after once declining the 
inheritance ; the fact being that, seeing that the boy does not 
become heir, but only has utUes actiones, there is no doubt that the 
man who once became heir will remain heir. 11. Again, if a minor 
did not appeal within the proper time, he is aided so far as to 
be enabled to appeal ; it may be assumed that this is what he 
desires. 12, Similarly he is aided in case of adverse judgment 
against him for default of appearance. However, it is undoubted 
law that men of any age can have a new trial after judgment in 
defoult, if they show that they were absent with good ground. 

8 EBBMOGBKiAJsnors (Epitomes of law 1) Even where judgment 
is pronounced against a minor on the ground of contumacy, he can 
ask for the relief of restitution m integwm, 

9 ULPIAKUS (on the Edict 11) If, in pursuance of a judgment^ 
goods of a minor are taken in execution and sold, and after that 
he gets restitution against the decree of the Praeses or Imperial 
procurator, it is worth considering whether the things which were 



234 On persom under twenty-five [BOOK iv 

sold ought not to be recovered ; it is quite certain that where his 
money was paid in pursuance of the judgment it will have to be 
restored. In truth, the minor has an interest in recovering the 
goods themselves rather than their value, and I should say that 
this must sometimes be allowed, that is if the minor would other- 
wise suffer serious loss. 1. A married woman too is relieved in 
i-espect of the amount of her dos, if she has been inveigled into 
giving more than her means will bear, or perhaps has given her 
whole property. 2, We may next consider whether minors are 
relieved only where they are put to a disadvantage in respect of 
contracts, or it applies equally where they commit delicts ; for 
instance, suppose a minor was guilty of Home dolus in connexion 
with a deposit or a loan or any case of contract, will he be relieved 
if nothing comes to his hands by it* AH to this the law is that 
minors will not get relief in respect of delicts ; so that none is 
given in the eases mentioned. As a matter of fact, if a minor 
commits a theft or does damage to properly, he will not be relieved. 
Htill, if, in a case where after committing damage he could have 
avoided payment of double damages by confession, he chose to 
deny his act, restitution will 1 be allowed him HO for only as to 
enable him to be treated as if he had confessed. On the same 
principle, if it was in his power to nettle for the loss he occasioned 
$18 thief so as to avoid an action for twofold or fourfold damages, 
he will l>e relieved. & If a married woman, after being divorced 
through her own fault, desires this relief, or a husband does the 
name, 1 should say no restitution can be had, as the case iw one 
of a serious offence ; in fkct,the law in that if adultery is committed 
by a minor, the relief IH not given. 4. Papinianus says that if 
a person over the age of twenty but under twenty-five allows 
himself to be sold into slavery, that is, if he shares the price, it 
in not the practice to grant restitution ; this is perfectly right, as 
the case does not admit of restitution, the status of the party being 
changed. f>. If a minor appears to have incurred a forfeiture for 
non-payment of duty, there will be an order for restittition m 
iHtetjwm. But this must be understood to be on the assumption 
that there in no wilful misconduct in the cane on the part of the 
minor; otherwise the restitution will not be grantee! 6. Add 
that it i inadmissible that a minor should be relieved by the 
pnator againwt the acquisition of liberty by hi* slave, 
10 PATJLITB (on the Edict 11) except where he obtains this 
indulgence from the Bmperor on very special grounds. 
1 Rood *# for sit. Of. M. 



TTL i?] On persons under twenty-Jive 235 

11 ULPIASTUS (on the Edict 11) But there will be an action 
de dolo or an utiUs aetio for an amount representing the interest 
which the minor had in the slave not being manumitted ; accord- 
ingly whatever would have been his if he had not executed the 
manumission will have to be made good to him. Moreover, in re- 
spect of such things as the manumitted slave made away with, but 
which belonged to his owner, there are good rights of action against 
him for production, or for theft, by way of condietio, for the reason 
that he 'handled 3 them after he was free ; but where the delict 
was committed during the time of slavery, the owner has no right 
of action for it against the thief after the latter has acquired his 
freedom : this is comprised in a rescript of the Divine Severus. 
1. How are we to deal with the case of an owner under the age 
of twenty-five but over twenty selling a slave on the understanding 
that he is to be manumitted ? I say over twenty, because it is 
stated by Scsevola himself (Qucstiotis b. 14), and it is the better 
opinion, that the rule laid down in the rescript of the Divine 
Marcus addressed to Aufidius Victorinus does not embrace this 
case, I mean that of a minor 1 over twenty. We have to con- 
sider then whether relief is not given to one over twenty years 
of age ; and the answer is that if he asks for restitution before ttfe 
slave's freedom is acquired, his application will be entertained, 
but if he only does so afterwards, it cannot On the other hand 
it may be asked whether where the party himself who purchases 
on the above understanding is a minor, he cannot get restitution. 
Here again, if the slave's freedom is not yet acquired, the proper 
view is that he may be relieved ; but if he only applies after the 
day agreed upon has arrived, then the intention of the vendor, 
if he is himself more than twenty years* of age, carries the gift 
of freedom. 2, A question was asked on a statement of feet as 
follows. Certain young men under twenty-five had received as 
curator a man named Salvianus ; who, after discharging the duties 
of the curatorship for some time, came to be appointed a city 
procurator by the gift of the Emperor, and after that obtained 
an order from the prator in the absence of the minors releasing 
him from the curatorship. Hereupon the minors applied to the 
praetor and asked for restitution m intepnm against Salvianus, on 
the ground that he had been released contrary to legislative enact- 
ments on the subject It waa no* the practice, so they maintained, 
for persons to be relieved of guardiatwhips which they had oaee 

1 For ftinorwn read mtfw&n. Of. M. 
9 After mtfvrk read etyfatf omfo M. 



236 On persons under twenty-five [BOOK iv 

undertaken, except such persons as were beyond seas on business 
of the state, or were employed in the direct service of the Emperor, 
an example of relief given on such a principle being the case of 
Menander Arrius the eou$iliariits ; nevertheless Salvianus had 
been excused his duties, so that they the minors had been put to 
a disadvantage, and accordingly they claimed to get restitution 
in mtegrmi from the pnetor. JBtrius Severus was in doubt how 
to deal with the application, and referred it to the Emperor Severus, 
who, being thus consulted, sent a rescript to Venidius Quietus, the 
successor of JEtriuH, to the effect that there was no case for the 
'pnetor'H interference, it not being wtated that any contract had 
been made with a person under twenty-five ; but the usual course, 
he Haul, wan for the Emperor himself to interpose, and order the 
party to resume the duties of curator, where he had been wrong- 
fully excused by the pnetor. 3. 1 must not omit to say that 
minors are not relieved as a matter of course, but only on cause 
shown, in a ease where it appears that they have been put to a 
disadvantage. 4- Moreover, if a man, after carrying on his affairs 
in a judicious manner, asks for restitution in consequence of some 
loss which took place not through his own heedlessness, but by 
unavoidable accident, he will not get the order ; it is not the mere 
occurrence of loss that procures a man the indulgence in question, 
but liiri want of heed and caution. This is the same as what 
Pomponius sayw (b. 2tf j. Accordingly there is a note by Marcellus on 
JulhuuiB as follows : if a minor buys a slave that he is in need of, and 
after that he [the BlaveJ diew, the minor has no claim to restitution ; 
he was not put to any disadvantage about the purchase of a piece 
of property which he could not possibly do without, though no 
doubt the slave was mortal* 5. Where a man becomes heir to 
someone of ample means, and the estate of the deceased un- 
expectedly goes to ruin, for example there are farms which are 
destroyed by a lamb-dip, housew are burnt dovui, or slaves run 
away or die, Julianus XISOH language (b. 4(5-, implying that if the 
heir in a minor, he will get restitution w 'hiteyrmn ; but Marcellus 
in his notes to Julianus declares that restitution would not be 
given ; aa the party was not taken in in any way owing to the 
heedlesaiiesH of youth when ho entered on a rich inheritance, and 
the accidental mfathapH that took place might very well have been 
experienced by any householder of full age, however careful. But 
a minor might have a claim to restitution in such a case as this : 
suppose he entered on an inheritance containing a number of 
of property liable to bo lost by death, or, say, containing 



TOT. iv] On persons under twenty-five 237 

land with buildings on it, but on the other hand subject to a 
heavy debt; and he did not anticipate any probability of its 
coming to pass that slaves died or buildings fell in ; or he was 
not sufficiently quick in selling such things as are exposed to 
different kinds of accidents. 6. A further question is this : is 
the application of one minor to be entertained where he asks for 
restitution against another? In Pomponius the answer given is 
simply No ; however, my own opinion is that the praetor ought to 
inquire which of the two was put to disadvantage, and if both were, 
for example, one minor lent money to another and the latter lost 
it, in that case, according to Pomponius the one who borrowed the 
money, and then squandered or lost it, has the better claim. 
7. No doubt, if a person under age contracts with &filiusf(m/iUcis 
of full age, then, according to the opinion expressed by Julianus 
(Dig. b. 4) and Marcellus (Dig. b. 2) he can get restitution m 
integmm, so that the rule about age is more attended to than the 
Senatvsconsultum [Mctcedonianum]. 

12 GAIUS (on the provincial Edict 4) If a woman intervenes 
to make herself liable at the suit of a minor in the place of some 
third person, no action will be allowed the minor against the 
woman, he will, in fact, like anyone else, be barred by an e&ceptw, 
for the reason that the ordinary law gives him restitution in respect 
of his right of action against the original debtor. This is on the 
assumption that the original debtor is solvent, otherwise the 
woman cannot avail herself of the benefit of the Senatrusconsultum 



13 TjLPiAfftrs (on the Edict 11) An essential point to consider 
when cause has to be shown is whether relief should be given to 
the minor alone or it is to be extended to others who are bound 
along with him, for instance, sureties ; the truth is that if I knew 
the party was a minor, and I did not fed that I could trust him, 
but you were surety for him, it is not just that the surety should 
be relieved and I be ruined, rather the surety himself ought to 
be refused the action on mmdatum. The short rule is that it 
will be for the praetor to weigh well the question which of the two 
he is most bound to relieve, the creditor or the surety ; as for the 
minor who suffers disadvantage, he will be liable to neither. There 
is less difficulty in saying that relief should not be given to a 
mandator, as you may say that his assertions and encouragement 
procured the contract to be made with the minor. This may weQ 
lead to the question whether a minor ought to ask for restitution 



238 On persons under twenty-five [BOOK iv 

in ittfegrwn against the creditor or against the surety too. The 
safer course would, I should say, be to ask for it against both ; 
the question of ordering restitution in integrum should be weighed 
on cause shown and in the presence of the parties, or in their 
absence where such absence is wilful. 1. Sometimes the Court 
goes so far as to give a minor restitution in rem, that is, against 
the man who is in possession of his property, though he was not 
party to any contract. For instance, you purchased something 
from a minor and sold it to a third person ; here the minor has 
a right in some cases to ask for restitution against the person 
in possession, lest lie should lose his property or go without his 
property, the course followed being that either the preotor hears 
the csise, or cine the transfer is set aside and an action in rem 
in allowed. Pomponius tells us (b. 28), that in Labeo's opinion, 
where a person under twenty-five Hells and delivers land, and the 
purchaser transfers it on to a third person, then, if the second 
purchaHcr was aware that the facts are as stated, restitution will 
be ordered against him ; but if the second purchaser was not 
aware, and the first purchaser in solvent, the order will not be 
made ; if the first purchaser is not solvent, the fairer course is 
to relieve the minor even to the prejudice of a second purchaser 
who had no notice although he purchased lona fide. 

14 PAinuus (<w the fidict 11) No doubt as long as the party 
who purehaaed from the minor, or the heir of such party, is a 
substantial person, no decree should be made to the prejudice of 
the bonajide purchaser of the property, and this is laid down by 
Pomponhis hhnnelf, 



15 OAWB (on tlw jHtwwMsicil Kdkt 4) Of course, where resti- 
tution is granted, a Rubscquont purchaser can come upon his own 
vendor, and a similar rule holds if there arc neveral successive 
purchasers, 

16 ULPIANUH (on the Itidict 11) A further point to consider, 
when the case comes on, is this, whether there may not be some 
other kind of action open short of one for a restitution in inteyrum ; 
becauo if the party is sufficiently protected by the ordinary 
remedies and by direct law, lie ought not to be allowed extra- 
ordinary relief; bike, for .instance, the case of a contract being 
made with a ward without the concurrence of the guardian, where 
the ward is not the richer by it 1. Again, it is stated in a book of 
I^abeo's that if a minor is inveigled into contracting a partnership, 



TIT. iv] On persons under twenty-five 239 

or even where he affects to assume the position gratuitously, 
no real partnership is contracted, nor would there be any even 
if the parties were of full age, and consequently there is no case 
for the praetor's intervention. Ofilius too lays down the same 
rule ; because the party is sufficiently protected in direct law. 
2., Again Pomponius has the following (b. 28) : an heir was 
required to hand over sundry things to his brother's daughter 
[a minor], subject to the condition that, if she died without 
children, she should restore them to the heir, and, the heir dying, 
she undertook to restore them to his heir : on which facts Aristo 
held that she had a right to restitution in integmm. But Pom- 
ponius goes on to say this, that the undertaking given could be 
made the subject of a condictio incerti even by a person of full 
age; in point of fact the person, he says, eryoys security not 
at once without more, but by means of a condictio. 3. In short 
the general rule must be held to be that where the contract itself 
is invalid the praetor ought not to interfere in respect of a matter 
which is clear in law. 4. Pomponius further says that in purchase 
and sale the contracting parties are free to take advantage of one 
another about the price, upon principles of natural law. 

5. We may next consider the question who can grant orders for 
restitution in wtegrum. Restitution may be granted by the prefect 
of the city and by other magistrates so far as this corresponds with 
their general jurisdiction, relief being thus given against their own 
decisions as well as in other cases. 

17 HBRMOGBTSIANITS (epitomes of law 1) The prafecfatsprastorio 
can also give restitution in integrum against his own decision, 
although there is no appeal from his court The reason why this 
distinction is made is that an appeal amounts to a complaint that 
the decision is unjust, but in an application for restitution in 
integrum the party is really asking to be relieved from the conse- 
quence of his own want of judgment, or alleges that he has been 
overreached by his opponent 

18 ULPIANUS (on the Edict 11) But an inferior magistrate 
cannot give restitution against the decision of a superior ; 1. and if 
the Emperor has pronounced a decision, he very rarely allows resti- 
tution, or permits a man to be introduced into his council-chamber 
to say that he was put to a disadvantage owing to youthful want of 
judgment, adding, it may be, that grounds which were in his fevour 
were not brought forward 1 , or complaining that he waa betrayed by 

1 For dicta non atteff&t read di&tt non allegata, M. 



240 On persons under twenty-Jive [BOOK rv 

his counsel For example, the Divine Severus and the Emperor 
Antoninus refused to listen to Glabrio Acilius, who, without alleging 
any special grounds, asked for an order of restitution against his 
brother after the case had been heard to the end in the Imperial 
chamber. 2. Nevertheless, when Percennius Severus asked for 
restitution 1 in iutegrnm in opposition to two decisions already 
given, the Divine Severus and the Emperor Antoninus allowed 
both matters to be made the subject of an inquiry before them. 
3. The same Emperor informed Licinnius Fronto by rescript that it 
was not uBual for any one except the Emperor himself to give 
restitution m intc^mm after a decision pronounced on appeal by 
a judge who took the Kmporor'tt place. 4 Moreover, if the case 
has been heard by a judge assigned by the Emperor, restitution 
can only be given by the Emperor, who himself appointed the 
judge. f>, Restitution in integmm is granted not only to minors 
but to the Huccessors of minors as well, though they should them- 
BelvcB l>e of full age, 

19 TUB BAMK (on tlw Edict Itt) Sometimes however the suc- 
cessor of the minor will be given a longer time than the year for 
taking proceedings, as the Kdiet itself says, if his own age chance to 
furnish ground for it ; m after the age of twenty-five he will have 
the regular period ; he may indeed lie said to have been put to a 
disadvantage in respect of the fact that whereas he had a claim to 
restitution within the time which wa given with reference to the 
deceased, he did not apply for it. No doubt if the deceased had 
[only] a short portion remaining of an annus uf/Uis [365 available 
day*)', biH a heir, if under age, will be allowed for the purpose of 
getting restitution, after the completion of his own twenty-fifth year, 
not the whole of the time laid down [so. a year], but only so much 
time HB the minor to whom he ia heir himself had remaining. 

20 THE HAMJB (on the Edict II) Papiaiamis nays (JSeuponsa 2) 
that when a man eomes home from exile he ought not to be 
allowed any prolongation of the time laid down for restitution 
in iwte#rwn ; because while he was abnent it was in his power to 
apply to the priotor through a procurator, but he naid nothing ; 
or he could have applied to the pra&ses in the place where he was* 
Where however thin writer goes on to say that the party has 
forfeited all claim to relief by reason of the puniahment inflicted 
on him, this is incorrect ; what connexion is there between criminal 

1 After rwttiui insert dmderante, tan re*. M. 
a Road h^w for hwc. Of. M. 



TTT. iv] On persons wider twenty-five 241 

conduct and an excuse given on the ground of youth ? 1. But if 
a person who is over twenty-five should within the period laid 
down for restitution carry his suit on as far as litis contestatio, and 
after that discontinue the proceedings, the Ittis contestatio will 
not be of any use to him towards procuring restitution in integrum ; 
this is laid down in a great many rescripts. 

21 THE SAME (on the Edict 10) However, a man is not held 
to discontinue a matter when he merely postpones further steps, 
but only when he abandons the case altogether. 

22 THE SAME (on the Edict 11) Where restitution is asked for 
so as to revoke an entry on an inheritance on the part of a minor, 
the minor will not have to refund any portion of the estate which 
he has spent in discharge of legacies, or the value of slaves who 
may have acquired their liberty by means of his entry. Similarly, 
in the converse case, where a minor gets restitution for the purpose 
of making an entry, then any transactions executed by the curator 
of the goods appointed by the Praetor's order in due form of law for 
the purpose of making the proper sales must be upheld, according 
to the rescript of Severus and Antoninus addressed to Calpurnius 
Flaccus., 

23 PATJLUS (on the Edict 11) Where bfitiusfomiMas carries on 
business in pursuance of a mandate from his father, he cannot 
have the benefit of restitution, in feet, even if the mandate had 
been given him by a stranger, he would not have this relief, because 
the result would be that the person whose interest was chiefly 
promoted would be a person of full age, who would have been the 
one exposed to loss in the matter. Where however the feet is 
that the loss will eventually fall on the minor, because he is unable 
to recoup himself for such expense as he incurs by having recourse 
to the person whose business he carried on, on the ground of that 
person's insolvency, then, no doubt, the Ptsetor will interpose. 
But should the principal himself be under age and the procurator 
be of full age, the principal will not easily get a hearing, except 
where the transaction is carried on by his mandate, and he caiinot 
indemnify himself by having recourse to his procurator. Hence we 
may add that if a minor is imposed upon when acting as prow/rotor^ 
the principal ought to bear the loss, as it was his own folly that 
he put his affairs in the hands of such an agent This is Marcellus^ 
own opinion. 

M. J. 16 



242 On persons under twenty-five [BOOK rv 

PAUIAJS (Sentences 1) But if a minor meddles of his own 
accord with the affairs of a person of full age, he can get resti- 
tution, so as to prevent loss happening to the latter. But if he 
declines to do this, then, if he should be sued on negotia gesta, he 
will have no restitution against the action; indeed he may bo 
compelled to assign to the principal any right that he has to relief 
by way of restitution in integrum [against a third party] HO as to 
make the principal "procurator on his own behalf," in order to 
enable him by that means to make good the loss which he incurred 
through the minor. 1. However, transactions carried on with 
minors ought not to be as a matter of course rescinded, they ought 
simply to be put on a footing of fairness and justice ; or else 
persons of that uuadvanced time of life would be put to great 
inconvenience, as no one would conclude any contracts with them, 
and they would virtually be under an Interdict aft to all dealings 
with property. Consequently, the Praetor cannot interpowc unions 
they have been clearly overreached, or have acted with extreme ! 
carelessness in the matter. 2. Our master Hcsevola used to say 
this : where a man, owing to the thoughtlessness of youth, neglects 
or declines an inheritance or a bonowwn jjossc&tiO) then, if every- 
thing remains as it was, his application for the order ought by all 
means to be entertained ; but if, after the inheritance in sold and 
the affairs wound up, he comes and askn for the money which han 
been got in by the exertions of a substitute, he must be refused n 
hearing ; and in such a case the court ought to be much stricter 
still about giving restitution to the heir of a minor* ;*, If a 
slave or a filiwfamilias should impose on a minor, the owner 
or the father ought to be ordered to restore whatever cornen to 
his hands ; what does not come to MB hands he wnsfc make good 
out of the peeulium; if neither of these two resources is found 
sufficient, and there is wilful misconduct in the cane on the purl 
of the slave, the latter should either be punished with stripe*, or 
surrendered for maa. We may add that if the jHiutfumilitw in 
equally guilty, he is liable to have judgment pronounced against 
him on the ground of MB misconduct 4, Restitution ought 
to be so carried out that everybody recovers Inn legal portion 
unimpaired. Accordingly, where a person gets restitution who 
was imposed upon in respect of a sale of laud which he niodtt, the 
Prsetor will order that the purchaser should restore the hind with 
mesne profits, and that the purchase-money should be returned 

1 For (am read wt/Hodum. Of. M. 



TIT. rv] On persons under twenty-five 243 

him, unless he paid it knowing that the applicant would get rid 
of it, as a man does in the case of money which is lent for the 
borrower to spend ; but the relief is less readily given in connexion 
with a sale, as the purchaser pays the vendor a debt, which 
he is compellable to pay him, whereas nobody is compellable to 
lend money ; and, even admitting that the circumstances under 
which the contract was made were such that it is liable to be set 
aside, still, if payment of the price could be compelled, there is no 
reason why the purchaser should be exposed to loss as a matter 
of course. 5, This Edict gives rise to no special action or under- 
taking, the whole thing depends on the praetor's estimate of the 
facts. 

25 GAIUS (on the provincial Edict 4) There is no doubt about 
this point, that if a minor pays something which he does not owe, 
under circumstances which give him no 1 claim by civil law to 
demand to have it returned, he has a right to an utilis actio to 
recover it; seeing indeed that the practice is to give an action 
for recovery, if sufficient grounds are shown, even to those over 
twenty-five. 1. In the case of a young man who has a good right 
to restitution, it ought to be given on his own application, or given 
to his proa&rator, where the latter has received an express mandate 
for the purpose ; but where the applicant only avers that he has a 
general mandate for carrying on his principal's affairs of every kind, 
he ought not to be heard. 

26 PAULUS (on the Edict 11) But if there is any doubt about 
the special mandate, when the party applies for restitution, he can 
put the matter on a satisfactory footing by means of a promise by 
stipulation that the principal will ratify the proceeding. 1. And 
in case of the absence of the party who is alleged to have taken 
advantage of the minor, any one who takes up his defence will have 
to give security that the judgment will be obeyed, 

27 GAITJS (on tlie provincial Edict 4) Restitution ought in any 
case to be granted to a father on behalf of his son, though the son 
himself should be unwilling to have it, because the father's interest 
is at stake through his liability to an action de ptcutio* From this 
it is clear that relations and relations-in-law in general are in a 
different position, and that they have no right to be heard, except 
where they apply for the order with the consent of the minor, 
or where the manner of life of the minor himself is such that 

1 Some would read deneganda for danda. Of. M. This would alter no daim 
into a claim. 

16-2 



244 On persons under twenty-five [BOOK TV 

an interdict may reasonably be issued taking from him the 
management of his property. 1. If a minor borrows* money 
and then squanders it, the Proconsul is bound to refuse to grant 
his creditor an action against him. But if the minor lends it to 
some one who is in circumstances of destitution, nothing further 
ought to be done than to order the young man to assign to his own 
creditor such rights of action as he has against the person to whom 
he lent the money. Again, if he should spend the money in the 
purchase of land at a higher price than it ought to cost, the way to 
arrange the matter will be to order that the vendor shall rentoro 
the price and take back the land, so that the creditor himself who 
lent the money to the minor may recover what is due to him without 
loss to any one else. By this example we learn in fact what the 
practice ought to be where the minor buys something with MK own 
money at a higher price than it ought to cost; only it munt be 
remembered that both in this and the above cause the vendor who 
gives back the price must pay in addition whatever interest he got 
or might have got for the money he received, and will have a right 
to recover mesne profits so far as the minor is the richer by them. 
And, conversely, if the minor sells for a lower price than , the 
property ought to fetch, the purchaser must bo ordered to restore 
the land with mesne profits, and the minor must give back HO muck 
of the price as represents the extent to which he is the richer by 
having received it. 2. If a person under the age of twenty-five 
gives his debtor a formal release without any consideration (svne 
cama\ he will get restitution of his right of action not only againut 
the debtor himself but against the sureties and in respect of any 
securities that were given him. If he had two correal debtor**, and 
he gave a formal release to one, his right of action will bo rentored 
against both. 3. By this we learn that if he should novato MB 
contract to his own loss, for example, by transferring the liability, 
by way of novation, from a substantial debtor to a person of no 
means, he can get restitution so as to recover his right of actioa 
against the former debtor. 4. Restitution ought to bo grantee! 
even against those persons on whose dolus no action in allowed to 
be brought, except so far as some persons are exempted by a 
special statute. 

28 CBLSTJS (Digest 2) Where a person under twenty-fivo goto 
restitution against one whom he sued in an action on tutela, it 
does not follow that the guardian himself will have restored to him 
the right to the counter action on tutela. 



TIT. IY] On- persons under twenty-five 24. 

29 MODESTIETIJS (Responsci 2) Where a ward can be shown fc 
have been put to a disadvantage, even if it was with the concurrent 
of his father, who is also his guardian, [it is held that] if he after 
wards has a curator given him, there is nothing to prevent thi 
latter asking for restitution in integmm on the boy's behali 
1. A female ward, having had judgment given against her in ai 
action founded on curatorship, desired to get restitution witl 
reference to one particular point in the decree, whereupon, seeinj 
that she appeared to have been successful as to the remaining 
points in the case as tried, the plaintiff, who was a person of full age 
although he at first acquiesced in the judgment, now maintained thai 
there ought to be a new trial altogether. Hereupon Modestinus'* 
opinion was, that if the particular matter as to which the ware 
desired restitution in integmm was independent of the othei 
matters comprised in the case, there was nothing in the case 
entitling the plaintiff to a hearing, in respect of his prayer thai 
the whole judgment should be set aside. 2. Where a party gets 
restitution in integmm by reason of his minority and in virtue 
thereof repudiates his father's inheritance, but none of the father's 
creditors are present or are summoned by the Prseses to take an; 
proceedings, it is a fair question whether the restitution can be 
held to have been properly granted. Modestinus's opinion was that 
as it was part of the case that an order of restitution in mtegrwm 
was given without the creditors being made parties, the order was 
no bar to an action by the latter. 

SO PAPINIAOTTS (Questions 3) An emancipated son omits to ask 
for possessio contra tahulaa, and, after having commenced the 
requisite proceedings for restitution, sues for a legacy under his 
fether's testament, being then over twenty-five, Hereupon he is 
regarded as abandoning the case; since, even supposing the period 
for procuring bononm possessio were still running, still, after he 
has elected to go by the will of the deceased, the indulgence held 
out by the praetor must be regarded as rejected. 

31 THB SAME (Kesponsa 9) Where a woman, after becoming 
heir to a deceased person, got restitution on the ground of her 
youth in order to enable her to decline the inheritance, I gave it aa 
tny opinion that any slaves forming part of the estate whom she 
had in due form manumitted in pursuance of a fidewommfawm 
would retain their freedom ; they would not, I added, be compiled 
to pay twenty awei as tte price of retaining it, as they had acquired 
freedom in a thoroughly tegal way. The feet is that even if aoxoa 



246 On persons under twenty-Jive [BOOK iv 

of the creditors had recovered their money from her before she got 
the order of restitution, no claim on the part of the others against 
those so receiving payment, with a view to having the money shared 
amongst them, would be held admissible. 

12 PAULUS (Questions 1) A person under the age of twenty-five 
applied to the Prases, and satisfied him by his personal appearance 
that he was of full age, contrary to the fact ; but his curators, 
knowing that he was a minor, continued to manage his affairs. 
Some time after the above decision as to his age, but before lie had 
reached the age of twenty-five, money that was owing to the youth 
was paid him, and he spent it unprofitable I wish to ask who 
bears the loss ; and supposing the curators themselves had laboured 
under the same misapprehension, ever since the decision wan arrived 
at, that is, they thought that he was of full age, and they had 
accordingly relinquished the management, and, in fact, sent in their 
accounts as curators, in such a case, would they have to bear the 
risk of the period which elapsed since the moment when the minor 
was [falsely] assumed to be ot full age? My answer was: as for 
the persons who paid their debts, they were released by direct law 
and cannot be sued over again. There is no doubt that curators 
who knew the party to be under age, and still continued to execute 
their office, ought not to have allowed him to receive the debts 
owing to him, and they are liable to an action in respect of it 
If however they gave credence to the decision of the JCraoncB, and 
ceased to carry on the management, or even went HO far *IH to 
submit their accounts, they are in the name position as any other 
debtors, consequently they are not liable to be sued. 

3 ABUBNIUS VALENS (Fideicommissa 6) If a pernon under 
twenty-five is requested [in a testament] to manumit a slave of JHH 
own, who is, as a matter of fact, worth more money than the amount 
which is left the minor by way of legacy in the same tCHiamont, 
and the minor accepts the legacy, then, according to a wjMn*tttti 
of Julianus, he is not compellable to give the slave IIIH lilwrty, 
if he is prepared to return the legacy; so that junt an a man of 
full age is free to decline the legacy, if lie is unwilling to manumit, 
so the party in question is excused from the duty of manumitting 
if he returns the legacy. 

I PAULXTS (Sentiences 1) If a person under twenty-five lewl 
money to a filwx&f<m;ili<w who is also under age, the one who 
spends the money is in the better position, unless [ho] the borrower 
is found to be the richer for the loan at the time of litf$ 



TIT. iy] On persons under twenty-five 247 

1. Where minors have arranged to submit their case to arbitration 
by a given judge, and have stipulated for performance of the award 
with the concurrence of their respective guardians, they have a 
good right to ask for restitution in integrwm, against the obligation 
so contracted. 

15 IlKEMOGBNiAiSfus (Epitomes of law 1) Where property is 
knocked down to a minor but he is outdone by means of a better 
offer made by another person, the minor will be heard on an 
application for restitution in integrum, if it is shown that he had 
an interest in becoming the purchaser, for example because the 
property in question once belonged to his ancestors; but this is 
only on condition that he himself gives the vendor the amount of 
the excess on the fresh offer. 

38 PAtTLtrs (Sentences 6) A person under twenty-five who has 
omitted to make some averment can recover the opportunity of 
making it by the help of a restitution in iwtegrum. 

yi TKYPHONINUS (Disputations 8) The relief consisting in 
restitution in integrum was not provided for the purpose of en- 
forcing penal damages, consequently where a minor has once 
omitted to bring an action for iryuria, the opportunity cannot be 
recovered by this means. 1. Again, in a case where the sixty 
days are passed within which a man can accuse his wife of adultery, 
by the right of the husband, without the proceeding being 
vexatious, restitution in integrum will be refused : indeed, if he 
wore now to seek to recover the right of which he had omitted to 
avail himnelf, how would this differ from a request to be excused 
the commiHttion of a delict> namely that of vexatious proceedings 1 
And inasmuch as it is an ascertained rule of law that the prator 
ought not to give any relief in respect of delicts or for the benefit 
of vexatious litigators, the restitution in integrum will not be 
granted. In the caae of delicts a person under twenty-five will not 
get restitution in mteyrum\ at any rate in the case of aggravated 
delicts, except to this extent, that sometimes consideration for 
youth may induce a judge to inflict a milder penalty. But, to 
,ootn<5 to the provisions of the le Julia for punishing adultery, 
a man who confesses that he has committed that offence has no 
right to ask for a remission of the pe&alty on the ground that 
be was under age; nor, as I have added, [will any remission be 
given] where he commits any of those offences which the statute 
puntehea in the same way a* adultery; as, for example, where he 
marries a woman who ira* cooatfeted of adultery, he knowing 



248 On persons under twenty-five [BOOK rv 

fact, or where his own wife was detected in adultery, and he declines 
to dismiss her, or where he makes a profit of her adultery, or 
accepts a bribe to conceal illicit intercourse which he detected, or 
lends his house for the commission of adultery or illicit intercourse 
therein ; youth, as I said, is no excuse in the face of plain enact- 
ments in the case of a man who, though he appeals to the law, 
himself transgrensew the law. 

38 PAULUS ( Uwrees 1 ) ^Emilius Lariauus bought from Ovinius 
the Hutilian plot, subject to a lew commissoria (conditional avoid- 
ance, i.e. on non-payment by such a day), and paid part of the 
price, the understanding being that if within two months from the 
purchase ho should not have paid half the balance of the purchase 
money, the sale should be rescinded, and again, if, within another 
two months, he should not have paid over the amount then 
remaining, the sale should equally be rescinded. Before the 
expiration of the first two months Lariunus died and was succeeded 
by Rutiliana, a girl under twelve, and her guardians failed to make 
the required payment within the time. The vendor, after repeated 
remindera to the guardian**, when more than a year had passed, 
wold the property to [one] ClaudiuH Telemachus; whereupon the 
ward applied for a restitution to wtegrwtn, and having been un- 
HuecoHBful, both in the Pftotor'a Court and in that of the City 
Prefect, nhe appealed. My own opinion was that the judgment 
she appealed from waw right, lacunae it was her father who made 
the contract, and not nho herself ; but the Emperor was influenced 
by the consideration that the day when the sale was to be rescinded 
arrived in the girl'n time [i.e, after the father's death], and it was 
by her own default that the termw of the sale were not observed. 
1 HUggeHted that u better ground for allowing her restitution was 
the fact that the vendor by reminding the guardians after the day 
on which it wan agreed that the wile might be rescinded, and asking 
for Ian pureluiHC-money, might be naid to have abandoned the 
condition in IUH favour; but I said I did not attach any weight to 
the fact that the time had lapsed after the death of the father, any 
more than I uhould to the fact of the creditor [of a minor] selling 
an article pledged where the time for payment had lapsed after 
the death of the debtor. However, aw the Mmperor did not like the 
to? cw/mmvria, he decreed rebtitution in mtegwm. There was 
another consideration which weighed with the Emperor, namely 
that the original guardian* who had omitted to aak for restitution 
had l>een pronounced uutrxiHtworthy (Mtqweti). 1. With regard 



TTT. iv] On persons wider twenty-five 249 

to the alleged rule that it is not usual for relief to be given to 
a filiwfawdlias after he is emancipated, supposing he is still under 
age, in respect of neglect attributable to him while under potestas, 
this is only the case where the result might otherwise be that he 
would acquire for the benefit of his fother. 

39 SO^BVOLA (Digest 2) Within the available time for asking for 
restitution, certain minors applied for the order before the Prseses 
and satisfied the judge as to their age. The question of age 
being decided in their favour, the opposing parties, in order to 
prevent further prosecution of the case in the Court of the Prseses, 
appealed to the Emperor ; and the Prseses, pending the result of 
this appeal, postponed the further hearing. Thereupon the question 
arose ; _if; w hen the inquiry on appeal in the Emperor's court is 
terminated, the appeal is dismissed, and the minors are found to 
have by that time passed the age of minority, can they proceed to 
finish the case [in the Court below], it not having been their fault 
that the matter was not brought to a conclusion ? My answer was 
that, taking the facts as stated, the case would go on just as if the 
applicants were still under age. 1. A plot of land belonging to 
a minor being put up for sale by his curators, one Lucius Titius 
was purchaser, who remained in possession for six years, and made 
the property far and far away better than it had been ; my question 
is whether the minor has a right to restitution in integrum against 
the purchaser Titius, his curators being substantial persons. I 
answered that, taking the whole of the facts stated, the minor could 
hardly have restitution, unless he chose to make good to the 
purchaser all the expense which the latter could prove that he 
had incurred in good faith, especially considering that he was 
provided with a resource ready to hand, as his guardians were 
persons of substance. 

40 UijPiA3srus (Opinions 5) Aperson under twenty-fiverecovered 
judgment to the effect that zjidecommissary legacy should be paid 
him ; whereupon he gave an acknowledgment that he had received 
it, and the [heir as] debtor gave him an undertaking to pay it, as if 
he had borrowed the money. In this case the minor can get 
restitution m integrum ; he had acquired a right to sue for money 
in pursuance of a judgment, and now, by means of a fresh contract, 
he has converted that right into a daim to originate proceeding* 
in a different kind of suit. 1. A person under twenty-five made 
over without sufficient reflection land of Ms father's in discharge 
pf debts incurred by the latter which appeared in the accounts 



250 On persons under twenty-Jim [BOOK iv 

relating to his management of the affairs of third persons to whom 
he had been guardian. In this case matters must be restored to 
an equitable footing by a restitution in integrum ; the transferee 
being credited with the interest due for the money which appears 
to be payable in connexion with the guardianship, and the amount 
being set oft* against the profits which he derived from the land. 

41 JULIANXJS (Digest 45) Where a minor has been imposed 
upon in respect of a sale of land, and the judge orders that it shall 
be restored to him, and that he shall give back the price to the 
purchaser, but the minor changes his mind and declines to avail 
himself of the order for restitution in inteyrum pronounced in his 
favour, then, if the purchaser sues for the purchase-money, as it 
were on the ground of a judgment, the minor will be allowed a 
good exceptio in bar of the action, since everybody is at liberty 
to disregard what was introduced for his own benefit. The pur- 
chawer* will have no cause for complaint if he is put back into the 
position in which lie WUH placed by his own act, and which he 
could not have altered if the minor had not prayed the aid of the 
Traitor. 

42 TJLrrAKUH (on tfie office of Proamul 2) The Prseses of a 
province can give restitution in intes/rum even against his own 
decree or that of bin predecessor in office ; because minors obtain 
by reason of their youth the same advantage which is given to 
pernonK of full age by allowing them to appeal 

43 MAKOKLLXJH (on the, offiw of Pmses 1) The age of a person 
who allegpH that he is over twenty-five nniBt be ascertained by 
a formal inquiry, bccatiHO the investigation may be a bar to an 
application for restitution in intvgrwn. by the person in question, 
an well an to other proceedings 

44 ULHANTJH (O'/riniom r>) It is not every kind of transaction 
by porHOiiH under twenty-five which is liable to be upset, but only 
those which on inquiry turn out to be such that 2 the applicant 
was overreached by Borne one elnc, or deluded through his own 
credulity, and HO either lout something which he possessed, or 
minacxl the opportunity of making Home gain which he might have 
made, or laid himnelf tinder the burden of some obligation which 
it wa open to him to decline to undertake* 

1 For wnditor road Mtiptor. Of. M. 

3 After dtprehtnm twit insert ut (Rucckor), 



TIT. iv] On persons imder ttventy-five 251 

45 CALLISTRATUS (Monitory Edict 1) Even where an unborn 
child fails to succeed to property owing to some one acquiring it 
by WMS before the child's birth, according to Labeo, he can get 
restitution of his right of action. 1. The Emperor Titus Anto- 
ninus laid down by rescript that where a minor alleged that his 
opponent had been dismissed from a suit owing to the fraud of his 
(the applicant's) guardian, and he desired to take fresh proceedings 
against the same defendant, it was open to him to begin by suing 
his guardian. 

46 PATJLTJS (Respon&a 2) Where a man volunteers to take up 
the defence of a minor in a trial, and judgment is pronounced 
against him, he can be sued on the judgment, and the youth of 
the person whose defence he took up will not constitute any case 
for getting restitution, as judgment is a ground of action to which 
he cannot demur. From this it appears that the minor himself, 
in whose behalf he suffered the adverse judgment, cannot pray the 
relief of restitution against the decision. 



47 SoffiVOLA (Responsa 1) A guardian who was pressed by 
creditors sold property of his ward in good faith, but the mother 
of the ward addressed to the purchasers a protest against the sale. 
I wish to ask, seeing that the property was sold under pressure 
from the creditors, and no reasonable allegation can be made of 
corrupt dealing on the part of the guardian, whether the ward can 
possibly have restitution in integrum. My answer was that this 
must be determined by judicial inquiry into the circumstances; but 
that if there were [otherwise] sufficient grounds for restitution, 
such relief ought not to be refused simply because the guardian 
was guilty of no misconduct 1. The curator of certain minors 
sold pieces of ground of which he himself and the youths whose 
curator he was were owners in common ; I wish to know, supposing 
these youths get an order from the Praetor for restitution in 
mtegnm, whether the sale will be rescinded only to the extent 
of their shares in the common property. My answer was, that it 
would be rescinded only to that extent ; unless, indeed, the purchaser 
desired that the whole contract should be abandoned, on the 
ground that he would not have bargained for a share only. A 
further question I wish to ask is this : would the purchaser have 
to recover his money with interest from the wards, Seius aa,d 
Sempronius, or from the heir of the curator? I replied that the 
heirs of the curator were liable, still actions would be allowed 
against Seius and Sempronius to the extent of the shares which 



252 On persons under twenty-five [BOOK iv 

they had in the land, at any rate if the purchase-money which had 
been received had come to their hands to a corresponding amount. 

48 PAXJLTTS (Sentences 1) If a minor gets restitution in in- 
tegrum in respect of some suretyship which he undertook, or a 
mandate which he gave, this does not release the principal debtor. 
1. A minor sells a female slave ; if the purchaser manumits her 
the minor cannot thereupon get restitution in integrum, but he 
will have an action against the purchaser for the amount of his 
interest. 2. Where a woman under the age of twenty-five finds 
her position made the worse by an agreement to give dos, and she 
has in fact entered into an agreement such as no woman of full 
age would ever enter into, which she therefore wishes to rescind, 
her application ought to be entertained. 

49 UL.VIANTTB (on tJw Edict 35) If property of a ward or a 
minor is wold, there being no statute forbidding the sale, the sale 
is valid ; at the watne time, if it involves a serious loss to the 
ward or the minor, oven though there was no collusion in the 
case, the sale may be reminded by restitution in integrum. 

50 POMPONIUS (Iritters and various passages 9) Junius Dio- 
phantUH greets hin friend Pomponius. A person under twenty-five 
intervened with the intention of novating a contract [by substi- 
tuting himHolf a debtor] on behalf of an existing debtor,, this 
latter being liable to an action which would be extinguished by 
lapse of time, and as to which there were then ten days more to 
run ; after which the minor got restitution in integwm, ; will the 
renewed right of action, which iw given to the creditor against the 
original debtor, be for ten dayn or for a longer time? What I 
have maintained is that so much time ought to be given, reckoning 
from the day of the restitution in inteyrtm, aw had been remaining 
originally. I wish you would let me know in writing what is your 
own opinion. The titiBwer WUH ; I certainly think that what you 
held with reference to the limited right of action in respect of 
which a minor intervened, fa the better opinion, and consequently 
the aecurity which the former debtor gave will also remain available. 



TIT. v] On capitis minutio 253 



V. 

ON capitis minutio. 

1 GAIUS (on the provincial Edict 4) Capitis minutio is a 
change of status. 

2 ULPIA^XJS (on the Edict 12) This Edict refers to such cases 
of capitis deminutio as occur without affecting a man's right of 
citizenship: when a capitis deminutio occurs which involves loss 
of citizenship or loss of liberty, the Edict will not apply, and the 
person concerned cannot be sued in any kind of action ; of course 
an action will be allowed against persons into whose hands the 
property of those in question has passed. 1. The Prsetor says: 
"Whatsoever man or woman, after becoming party to any contract 
or transaction, shall appear to have suffered capitis deminutio, 
I will allow an action against him or her, just as if such capitis 
deminutio had not taken place." 2. Persons who suffer capitis 
deminutio will still remain subject to a natural obligation in respect 
of such grounds as occurred before the capitis deminutio ; but if 
the grounds occurred afterwards, it is the other party's own folly 
for entering into a contract with the person in question, so far as 
the words of this Edict are concerned. There are cases, however, 
in which an action will be allowed where a contract was made with 
a person after he suffered capitis deminutio ; and, in fact, if it is a 
case of arrogation, no difficulty arises, as the party can contract an 
obligation just as much as any [other] jfilii&familias. & No one 
can get rid of his delicts, in spite of undergoing capitis minutio. 

4. Where a man arrogates his debtor, the right of action against 
the debtor will not be renewed on the latter becoming mi jwis. 

5. The right of action above given is not subject to limitation, and 
the right and the liability pass to the respective heirs. 

3 PAULUS (on the Edict 11) When children go with their 
paterfamilias on the latter being surrogated, it is held that they 
suffer capitis dewnufao, as they come under some one else's potesta 
and they change their family. I. When a son or any one else 
[under potestas] ia emajaeipated, lie clearly incurs capit/is demmwtw^ 
because no one can be emancipated without first being reduced as 
a matter of form to a servile wn^Mon : this is very different 



254: On capitis minutio [BOOK iv 

the case of a slave being manumitted, because a person in bondage 
has no legal position at all, consequently none can be altered 

4 MODESTINUS (Pandects 1) in fact he only begins to have 
any status on the occasion itself. 

5 PAULUS (on the, Edict 1 1) Loss of citizenship amounts to a 
capitis minutio, as in the case of " Interdiction of fire and water. 7 ' 
L Persons who make "defection 7 ' incur capitis dcminutio\ (de- 
fection is said to be made by such as withdraw themselves from 
those under whowe command they are, and bring themselves into 
the category of enemies ; also by those whom the Senate has pro- 
nounced to be enemies, or [has made such] by means of a special 
statute;) at any rate such persons HO far suffer capitis deminutio 
that they IOKO their citizenship. 2. We may now come to the 
question what it is that IB lost by capitis deminutio ; and we may 
first of all take that cttpitiu deminutio which occurs without 
affecting a man's citizenship, and by means of which it is acknow- 
ledged that a man's position in matters of public law is not taken 
away. For instance, it in certain that a man will remain a magis- 
trate or a senator or a judge. 

6 UUTANUS (MI Sabinw 61) In fact any other office which 
the party holds under government continues as before; as [this] 
wtpitw dcwtimttio puts an end to a man's private rights and those 
connected with Iw* family position, not those connected with 
citizenship. 

7 PAULUS (on the Edict 11) Guardianships too are not lost 
through ctqritw tfaninntio, except wucli guardianships as come to 
persons li ving under some one else's jMteshw* Accordingly guardians 
appointed by testament, or in purwianee of a [modern] statute, or 
a senatorial decree, will remain guardian** in spite of the capitis 
(hwhwtiv : whereas statutable guardianships founded on the 
Twelve Tables are annulled on the name principle as statutable 
heirships ratting on the name foundation, both being conferred on 
agnates, who cease to be agnates when their families are changed. 
But both heirshipK and guardianships founded on recent statutes 
are for the most part given in such terms that the persons to 
receive them are pointed out by describing their natural position; 
for instance, there are senatorial decrees which confer the inheritance 
on mothers and sons as such. 1* Obligations founded on wgwfa) 
and in fact any which give rise to actions ex delict o, are attached 
to the individual 9* If a capitis deminutio occurs involving 



TTT. v] On capitis minutio 256 

loss of liberty, no renewal [of a right of action] is admissible as 
against the slave, because, even as a matter of praetorian juris- 
diction, a slave cannot be under an obligation so as to be liable to 
be sued ; but, as Julianus tells us, an utilis actio will be allowed 
against his owner, and, if the owner does not choose to defend the 
case for the whole amount claimed, there must be an order enabling 
the plaintiff to take possession of such property as the slave had 
[when he was free], 3. Similarly where citizenship is lost, there 
is no acknowledged principle of justice allowing restitution against 
a man when he loses his property and leaves the city and so goes 
into exile destitute. 

8 GAIUS (on the provincial Edict 4) Obligations, the fulfilment 
of which is regarded as a matter of natural law, it is obvious cannot 
be avoided by capitis deminutio, as no civil principle can entail the 
destruction of natural rights. Accordingly the right of action for 
dos, which is framed with express reference to principles of right 
and justice, will still hold good even after a capitis deminutio ; 

9 PAULTJS (on the Edict 11) so that if a woman comes to be 
emancipated, she may still one day bring the action. 

10 MODBSTINTTS (Differences 8) If a legacy is left 1 of a sum to 
be paid every year or every month, or there is a legacy of a 
habitatio y it fells through on the death of the legatee, but on the 
occurrence of a capitis deminutio it will continue uninterrupted; 
for the reason that a legacy such as named depends on fact rather 
than law. 

11 PATJLTJS (on Sabinus 2) There are three kinds of capUis 
deminutio, the greatest, the middle, the least; seeing that there 
are three positions a man may have, liberty, citizenship, and family 
status. Accordingly where men lose all these three, that is, liberty, 
citizenship, and family status, it is always held that this amounts 
to the greatest capitis deminutio ; where they lose citizenship but 
retain liberty, it is the middle, and where liberty and citizenship 
are both retained, but family position alone is changed, it ie 
understood to be the least capitis deminutio. 

1 For legatum...reUctum read fagato...relicto. M, 



266 Restitution after twenty-jive [BOOK rv 



VI. 
GROUNDS OK WHICH RESTITUTION in integmm is ALLOWED TO 

PERSONS OVER TWENTY-FIVE YEARS OF AGE. 

ULPIANUS (OH the Edict 12) No erne will refuse to admit 
that this Edict w founded on very sufficient grounds; where a 
man's legal position ban been affected to his detriment at a time 
when lie was attending to the service of the State, or was involved 
in Home misfortune, there in a remedy given ; on the other hand, 
relief is given against persons so circumstanced, in order that 
what hart come to pasw may have no effect to their advantage or to 
their disadvantage. 1* The words of the Edict are as follows : 
" Where any part of any one's property appears to be lost by non-user, 
when he is absent owing to fear, or, without fraudulent contrivance, 
in the service of the State, or is in prison, or in slavery, or in the 
power of the enemy; or subsequently 1 to such circumstances; or it 
appeutH that any one's right to bring an action is barred by time ; 
also where a man haw acquired ownership of something by USUB, or 
lian acquired anything which has been lost 2 by want of usus, or has 
been released from liability to an action by reason of the right of 
action of the other party being barred by time, the fact being that 
the person in question himself was absent and undefended, or was 
in prison, or had provided no means by which he could be sued, or 
there wa some legal obstacle to his being cited to appear against 
IUH will, and no one took up the case in his place; also where 
it shall appear that, after au appeal was made to a magistrate or 
Home one with the powers of a magistrate^, the right of action was 
lost by delay without any ill contrivance on the appellant's own 
part; in all thewe canon I will order restitution in integrum of 
the right of action (at any time] within a year after it was first 
possible to make uu application on the subject; and further, if any 
other just ground shall be shown mo, 1 will give the same relief, 
HO far UB the order shall be in accordance with statutes, plebiscites, 
decrees of the Honato, and edicts and ordinances of the Emperors." 

OALI/IBTIUTUH (Monitory Kdwt 2) This JEdici> so far as 4 it 
applies to those persons who arc mentioned therein is not now in 

1 Aftor pvtMfate read potteam non utondv deminutwn ewe. M. 

* For wnwU road amiwwn e$t or nit. Of. M, 
For #iw etti pro road prow. Of. M* 

* Read quoatl for yutxL 



TTT, TO] Restitution after twenty-five 257 

frequent use, as justice is administered in the case of such persons 
by procedure extra ordinem in pursuance of decrees of the senate 
and imperial constitutions. 1. The section we are considering 
first relieves those persons who were absent through fear; provided, 
that is to say, the fear causing their absence was not mere ground- 
less alarm. 

3 ULPIANUS (on the Edict 12) A man is held to be absent 
through fear who is absent because he is reasonably in terror of 
death or bodily torture, and this must be judged by seeing what is 
his actual state of mind ; but it is not enough that the alarm which 
kept him away should be simply any state of terror, the matter 
has to be investigated by the judge. 

4 CALUSTBATUS (Monitory Edict 2) [The Edict relieves] 
secondly those who have been absent, without dolus mains, on the 
service of the State. The fewst of dolus mafas, as I understand it, 
affects the application of the rule in this way, that where a man 
was able to come back and declined to do so, he is not relieved as 
to anything that happened to his prejudice during his absence; 
if, for example, he deliberately took means to be absent in the 
service of the State for the sake of securing some other particular 
advantage 1 , the privilege in question is withheld; 

5 ULPIANTTS (on the Edict 12) or suppose he contrived to be 
absent by taking pains for the purpose, even without an eye to gain, 
or set out earlier than he needed, or managed to be absent on State 
service in order to improve his position as a litigator. The proviso 
as to dolus malus applies to those who are absent on State service, 
it does not extend to such as are absent through fear; in fact, if 
there is any dolus, it is not a case of fear. 1. Persons who are 
acting on State service in Borne itself are not absent on State 
service; 

6 PAULUS (on the Edict 12) for instance, magistrates. 

7 ULPIANTTS (on the Edict 12) It is true that soldiers quartered 
in Borne are treated as being absent on State service. 

8 PATOUS (Short notes 3) A legate of a municipality is also 
relieved in pursuance of the ordinance of the Emperors Marcus and 
Commodus. 

9 OAIXISTBATTTS (Monitory Edict 2) Belief is also given to a 1 
man who was in chains. This expission does not refer owly.^o 

a man who is confined in the way of legal imprisonment, .bat 

i^deL HaL v, I 

M.J. 17 



258 Restitution after twenty-five [BOOKIV 

includes the case of one who is kept in duress by robbers or 
brigands or any application of overpowering force. The word 
chains is to be taken in a wide sense ; it is held that even persons 
who are merely in confinement, e.g. in the stone-quarries, are to be 
considered " in chains " ; it makes no difference whether a man is 
kept in dtirance with walls or with fetters. However Labeo holds 
that the word imprisonment must be taken to mean only imprison- 
ment in duo course of law. 

10 ULPIANUS (on the Edict 12) Those persons are in the same 
position who arc under the surveillance of soldiers or officers of the 
magistrate'^ court or attendants of the municipal authorities, if it 
is shown that they were unable to look after their own affairs. 
Persons are understood to be in chains who are to that extent 
bound that they cannot appear in public without discredit. 

11 OA.LLIBTBATUS (Monitory Edict 2) Relief is also given to 
one who in in a ntate of ncrvitude, whether he is a free man who 
is kept in good faith OH a slave, or is Bimply coerced. 

12 ULPIANUS (on the Edict VI] When a man is engaged in 
litigation on the question of MB ntatuw, his case ceases to be within 
the purview of the Edict an woou as the proceedings are com- 
menced ; accordingly lie ia regarded as being in a state of slavery 
HO long only m there is no trial begun of the kind mentioned. 

13 PAUUJ>S (on the IMict 12) Labeo nays quite rightly that a 
man iw not comprised in the Bdict who has simply been appointed 
heir with a gift of freedom, before he actually becomes heir, because 
till then he ban not really got any property, moreover the Praetor 
only Bpeukn of pwBoim who are free* I. I should say, however, 
that a jilwwf(Wttiliaft> aa far as his wwtreme peculiim is concerned, 
in within the ternm of the Kdict 

14 OALLISTRATXTB (Monitory JSdwt 2J Furthermore, relief is 
given to a man who han been in the enemy's power, that is to say, 
token prinimer by the enemy ; but denertertf cannot be Hupposed to 
derive any benefit from the Kdict, as they are refuBcd the right of 
potftiminiwn. Poruonfl in the power of the enemy might however 
be held to bo included in that part of tiie Edict in which it refers 
to those who have been in slavery. 

18 ULFUKUH (on t/w JMict 12) Belief in given in the case of 
persons taken by the enemy if they retwn under the conditions of 
poMimini'tm, or die in the encmy'H handw, aw they cannot have 
the BorvicoHof a jpwoMrator ; whereaa other poisons auch as above- 



TIT. YE] . Restitution after twenty-five 259 

mentioned can perfectly well get help through a procwrator, 
except those who are kept in a state of slavery. My own opinion 
however is that assistance can be had even on behalf of a man who 
has fallen into the enemy's hands, if there is a curator appointed 
for his property, as there commonly is. 1. Relief is given just as 
much 1 to one born in the hands of the enemy, if he has the right 
of postliminivm, as to one taken by them. 2. Where a man is put 
in possession of the house of a soldier on the ground of damnum 
infectum, if the Praetor granted the order for possession in the 
soldier's presence, he will get no restitution, but if it was in his 
absence, the rule is that he must be relieved. 3. With regard to 
the provision in the Edict in making which the Prsetor uses the 
words " or subsequently " without more, it must be understood to 
amount to this, that if occupation on the part of the Ixma fide 
possessor began before the absence [of the owner], but the period 
expired after his return, the relief consisting in restitution is 
'admissible, not, that is, at any distance of time, but only where 
application is made within a short time after the party's return, 
viz. not beyond the time he takes to hire a lodging, get his effects 
together, and look out for an advocate : but a man who puts off 
applying for restitution, Neratras tells us, ought not to have a 



16 PAULTTS (on the Edict 12) as relief is not given to persons 
who are remiss, but only to such as were hindered by stress of 
circumstances ; and the whole matter will be one to be arranged 
by exercise of the Rraetor's discretion, that is, in accordance with 
the principle of only giving restitution where a party was unable 
to join issue in the action not through remissness, but because 
time pressed. 

17 ULPLASTUS (on the Edict 12) Julianus says (b. 4) that a 
soldier will be relieved not only against the possessor of an inherit- 
ance, but even against purchasers from the possessor, so that, if 
the soldier accepts the inheritance, he can recover what is con- 
tained therein by a vindicatio ; but, if he does not accept it, there 
may be a construction by way of relation back to the effect that 
usuca/pio took place. 1. Again if a legacy is, left a man in such 
words as these : "or so much for every year which he shall pass 
in Italy," the legatee may get restitution to enable him to receive 
the annuity as if he had been in Italy, so Labeo says, and Julianus 
(b. 4) and Pomponius (b. 31) express their approval ; [which is a 

. 1 For minus *?*d magit. 

179 



260 Restitution after twenty-five . [BOOK iv 

fresh point,] as it is not a case of the right of action being barred 
by time in which the aid of the Prsotor would be required, but the 
matter turns on a condition. 

18 PAULUS (on the Edict 12) It must be borne in mind that 
the law gives persons of full age the relief of restitution only in 
cases where they sue in order to recover property or debts, not 
where the relief which they seek to have given them would enable 
them to make a profit by means of penalty or loss inflicted on some 
one cine. 

19 PAPINIANUK (Q'twtiom 8) Add that if a purchaser, before 
acquiring a thing by mus, is captured by the enemy, it is held that 
the interruption of pOHHOHfrion in not cured by postliminiwn; 
acquisition by uww is not valid without possession ; but possession 
in almost entirely a wtate of fact, and matter of fact is without the 
scope 



20 THE SAME (Qu&Oiom 13} Nor ought the purchaser to be 
allowed an iMttfa aetio, an it is very unjust to take a thing away 
from an owner, whore there was no umw that took it away ; a 
thing cannot be regarded a& lost, whore it was not taken out of the 
hands of the party who is said to have lost it, 

21 ULPUNXTB (on the Edict 12) "Also," the Edict says, "where 
a ponton has acquired owncrohip of something 1 by VMI&, or has 
acquired what had been lost by want of mw, or is released from 
liability to an action by reason of the right of action of the other 
being barred by time, the fiict being that the person in question 
hhuHclf was absent and undefended " (etc.). The Praotor inserted 
thin clause in order that, juwt aw he comes to the aid of persons in 
the {KwitiouB above (IcHcribed to protect them from suffering a dis- 
advantage, so ho may interpOHe' 2 in opposition to them to prevent 
them from cawing a disadvantage to other people. 1. It should 
be obnerved, moreover, that the 1'notor'u language is more compre- 
hensive whore he given restitution in opposition to these persons 
than it in where he coma* to their aid; thus, in the words before us, 
ho dooB not npocify the (Moroni elates of persons whom he relieves 
AgahiHt, aw in the provioun cane, but he inserts a general clause 
which eompriBOH all such persons as are absent and undefended. 
2. Itotttitutton in thin case it* granted, whether those thus absent 
and undefended acquired by v#w in their own persons, or by the 



1 After </w read quid* M, 

* Hoad nuccitrrui for tuccwrit* Hal 



TIT. vi] Restitution after twenty-five ' 261 

agency of others who were in their pote&tas, but only where there 
was no one to defend the case on their behalf; if there was a 
procurator, then, as you [the present applicant] had some one to 
sue, the other [who has now acquired by USMS\ must be left un- 
molested. But if there was no one to defend the case on behalf of 
the other party, it is perfectly fair that you should get the relief 
under discussion, especially considering that, in the case of people 
who are undefended, if they are purposely keeping out of the way, 
the Preetor promises to give possession of their property, to the 
further intent that, if the case requires it, it may be sold ; but if 
they are not keeping out of the way, though they are undefended, 
he simply promises. to give possession of their property. 3. A man 
is not regarded as being defended simply where some one puts him- 
self forward to defend him of his own motion, but only where there 
is some one called upon by the plaintiff himself who is prepared to 
follow up the defence to the end ; and the defence will be held to 
be complete where such person does not shirk the trial, and 
security is given that the judgment will be obeyed 

22 PATJLUS (on the Edict 12) It must be understood then that 
this Edict only applies where the friends of the party were asked 
whether they would undertake the defence, or there was no Mend 
who could be asked. In fact the only case in which it can be held 
that an absent person is undefended is where the complainant 
comes forward on his own part with an express challenge, and no 
one offers to undertake the defence ; and the complainant ought to 
make an attestation specifying these fects. 1. On the whole then, 
the Prsetor, while he does not wish the persons we are speaking of 
to suffer loss, is equally unwilling to allow them to make positive 
gain. 2. This Edict, according to Labeo, applies to the case of 
lunatics, infant children, and town corporations. 

23 ULPIAOTS (on the Edict 12) The Prsetor says farther : "or 
was in chains, or had provided no means by which he coijld be 
sued" He had good reason for proceeding to mention persons in 
these positions, as it was quite possible for a man to be in chains 
and yet be present, whether he were ptrt ifl chains by state autho- 
rity or by a private person ; and there & ntf doubt that a man who 
Is in chains, as long as he is not in * state of slavery, can acquire 
property by ww#. However, everi <#fa&e tfcS party is in chains, 
sfcBft, if th#re ia 4$*pe ene to defend Mm, no restitution wffl be 
ordered 1. But $ man cannot syoquire anything by usus vhen ]p# 
is fe the hwte of itaepWf .<fl&i # *ke time of possession 



262 Restitution after twenty-five [BOOK iv 

begun to run in his favour, he will not be able to complete it whilst 
he is in the enemy's hands : moreover, even if he returns under 
the conditions of postliminium, he will not be able to pursue the 
acquisition of ownership by usus. 2. Again, Papinianus says that 
where a man has lost the possession of land, or the quasi-possession 
of a usufruct in land, in consequence of being taken prisoner, he 
ought to be relieved, and the profits too which another person has 
gathered from the usufruct in the meantime he thinks ought in 
fairness to be handed over to the returning captive. 3. There is 
no doubt that those who were in the potestas of the [person since 
made] captive can acquire property by wits by means of their 
possession of it as part of their peculiim ; and it will be fair that 
the assistance prescribed by this clause should be given to persons 
who are present, that is, who are not in captivity, if anything of 
theirs was acquired by urns by some one| else, where they were un- 
defendecL On the other hand, if the time for bringing an action 
which the party had a right to institute against a captive has 
expired, relief will be given him against the captive. 4. The 
Prsetor then proceeds to say " or provided no means by which he 
could be sued," so that restitution may be granted [against him], 
if, while he is in course of making such provision, the acquisition 
by usus [on his part] should be completed, or some other event 
should happen of those mentioned above. This is quite reason- 
able ; an order enabling the applicant to take possession of the 
property is not always a sufficient remedy, as the circumstances 
may very well be such that it is impossible to give possession of 
the property of a person who is keeping out of the way, or 
that the party is not keeping out of the way ; take a case, for 
instance, in which, while the other is endeavouring to procure legal 
assistance, or the trial is for some other reason being delayed, the 
right of action is barred by lapse of time ; 

24 PAXTLTJS (on the Edict 12) but the words will equally apply 
to the case of persons who, when sued, elude the complainant and 
contrive by various shifts and subterfuges to evade the action ; 

25 GAIUS (on the Provincial Edict 4) and we may fairly say 
that they apply in a similar way to the case of a man who keeps 
out of reach, not with any intention of eluding a suitor, but because 
he is hindered by the multitude of his engagements. 

26 ULPIANT& (on the Edict 1 2) Again, restitution will be vouch- 
safed where the Praetor was himself in fault. 1. Restitution, 
according to Pomponius, against a man who is relegated will be 



TIT. vi] Restitution after twenty-Jive 263 



ordered in virtue of the general clause in the Edict ; but none 
be granted in his favour, because he could have appointed a 
procurator ; still I should say that on special cause shown the order 
would even be made in his favour. 2. The Prsetor proceeds : 
"or there was some legal obstacle to his being cited against his 
will, and no one took up the case on his behalf/' These words 
a PPty to those persons who, in accordance with ancient custom, 
cannot be cited without offence, such as the Praetor, the Consul, 
and any magistrate who is invested with some right of command or 
authority. But the Edict does not comprise .under these words 
persons whom the Prsetor does not allow to be cited without his 
own express permission ; because, if he had been applied to, he 
might have given the permission ; take the case of patrons 
and parents. 3. The Edict then has the words "and no one 
took up the case on his behalf* ; this applies to all the cases above 
mentioned, except that of a person who has acquired something by 
usm while absent; the reason for excepting this case being that 
it has been already fully provided for. 4. The Prsetor next 
says : " also where it shall appear that a party's right of action 
was lost by the fault of the magistrates without ill contrivance 
of his own/' What is the object of these words? It is to 
secure that in case a right of action should come to be lost in 
consequence of delays on the part of the judge, restitution should 
be ordered. Moreover where there was no magistrate accessible 
to whom to apply, in that case also, according to Labeo, restitution 
should be granted. By "the fault of the magistrate " we must 
understand such a case as that of a magistrate declining to enter- 
tain the matter, but if he simply, after hearing the application, 
refused to allow the action, there is no case for restitution : with 
this Servius agrees. Again it is a case of the fault of the magis- 
trate, if he declines to entertain the application out of favour to 
the defendant or for a corrupt motive ; in which* case not only the 
clause in question will apply, but a former one too, viz. "or the 
party provides no means by which he could be sued/' as in feet 
the party took special measures to prevent his being sued, by 
corrupting the judge* 5. By a right of action being lost we must 
understand to be meant the party ceasing to be able to bring an 
action, 6. The words are added "without afcy ill contrivance of 
his own,'* the obgect being that, if there should be some ill con- 
trivance on his part in the case, he should receive no assistance ; 
the Prsetor gives no relief to such as are themselves delinquents. 
Accordingly, if a man desires to bring his case before the neact 



264 Restitution after twenty-five [BOOK iv 

Praetor, and, with that object, deliberately misses the present 
opportunity, he will not be relieved. Or again, if he refused 
obedience to the Praetor's directions, and, for that reason the 
Prsetor declined to deal with his case, according to Labeo, he will 
get no restitution, and the rule is the same if the Prsetor refused 
him a hearing on any other ground. 7. If special holidays should 
be ordered, on the ground, it may be, of some national success, or 
in honour of the JEmperor, and the magistrate for that reason 
should decline to sit, Gaius Cassius announced expressly in his 
edict that he would grant restitution, because this must be held to 
be a case of the fault of the Prsetor ; the regular holidays he said 
ought not to be taken into account, because the complainant waw 
able to see when they were coming, and was bound to do so, AO as 
not to run against them. This is no doubt the better opinion, and 
Celsus says the same (Dig. b. 4). However, when time lapne 
owing to holidays, restitution ought to be granted only of the 
actual clays lost, not of the whole period from the beginning. 
This is said by Julianus (Dig. b. 4) ; what he tells us is that whore 
umcapio is set aside, the proper order is for restitution of an many 
days as those on which the complainant was ready and willing to 
take proceedings, but was hindered by the occurrence of the 
holidays. 8. [This rule applies] in any case in which a man by 
his absence hindered another's action for something nhort of the 
whole period required to bar the right ; suppose, for example, 
I was in possession of something belonging to you for ICHH by ono 
day than the period laid down for acquiring by mm y and then 
I began to be absent on State service, in that case restitution ought 
to be ordered against me for one day. 9. "And further," the 
Prsetor continues, "if any other just ground shall be tduwu me, 
I will order restitution in integrwn." It was necessary to innert 
this clause in the Edict, because cases of a great many kindw wight 
occur which would give a claim to the relief of restitution, but 
which could not be specifically enumerated, bo that whenever 
restitution is called for by the justice of the case, recourse can IHJ 
had to the above clause. Suppose, for instance, a man ban di- 
charged a legation on behalf of a city, it is perfectly junt that 
he should get restitution, though he was not absent in the norvice 
of the State ; and it has been often laid down that be ought to 
get relief, whether he had a procurator or not I Hiumlci way 
the same where he has been summoned from some province to 
come up to the city or to come before the Emperor in order to be 
a witness ; there have boon a great many rescripts to the effect 



vi] Restitution after twenty-Jive 265 

that this is a case for reliet Again, relief has been given to persons 
who have been abroad in connexion with some judicial enquiry or 
appeal. In short, as a general rale, whenever persons have been 
absent unavoidably and not by their own choice, the proper view 
is that they ought to be relieved ; 

PAULUS (on the Edict 12) and whether a man loses some- 
thing or is disappointed of some expected gain, an order for 
restitution should be made, though there should be no loss of any 
{K>rtion of his property. 

8 ULPIANUB (<m the Edict 12) Again, where a man has been 
absent on defensible grounds, the Praetor should consider whether 
it is a good case for relief, suppose, for instance, the party claims 
on the ground that he was prosecuting studies, and say his pro- 
curator was dead ; the object in such a case being to secure that 
he Bhall not lose his expectations in consequence of absence on 
some very reasonable ground. 1. Again, if a man is not confined 
or in chainw ? but has given security with sureties for his appearance 
somewhere, and, being in consequence unable to absent himself, 
has suffered some disadvantage, he will get an order of restitution ; 
and similarly an order may be made against him, 2. "So far" 
the Prtetor continues "as such order shall be in accordance with 
statutes, plebiscites, decrees of the Senate and edicts and ordi- 
nances of the Emperors**' This clause does not lay down that the 
Prwtor will give restitution if the statutes permit it, but if they 
do wot forbid it 3. Where a man has been absent in the service 
of the State several times, Jjabeo holds that the period allowed 
him for applying for an order of restitution should be made to run 
from the day of his last return. But if all his absences put 
together amount to a year, and each separately to less than a year, 
a felr point to consider is whether he has a whole year given him 
to ask for restitution, or only so much time as that for which his 
last absence lasted : but I should say a whole year. 4. If, when 
your place of abode is in the province, you 1 happen to be in the 
City, will time run against me, on the ground that it is in my power 
to sue you? Labeo says it wUl not I should say however that this 
iaonly true where the other side baa a right to an order to have the 
action removed into the prorincial Court; but, if he has not, it 
murt.be held that It fa to my power to bring the action, because 
I in able to have Issue joined ia Borne jwtfts well 5, A man 

hit been abeeut on State 



266 Restitution after twenty-five [BOOKIV 

to his right of action to rescind ; suppose, for instance, he should 
have got possession of the property [winch he lost], and a mndi- 
vtttio is brought against him to recover it. 6. In an action to 
rescind which a man has a right to bring against a soldier 
Pomponius says it ib perfectly just that the defendant should 
account for the profits attributable to the period during which he 
was absent and undefended ; consequently such profits must be 
handed over to a noldier | in the converse case] ; there are similar 
rightH of siction on both sides. 

29 AKRK'.ANTTH (Quwtlww 7) The object being that the discharge 
of a duty to the State should be no loss or gain to any one. 

30 PAUMTH (on tfw Edwt 12) Where a soldier who was in 
course of acquiring something by mm dies, and his heir completes 
the period required for acquisition, it is agreeable to justice that 
the acquisition enmiing thereupon should be liable to be rescinded, 
the same legal construction being maintained (eadem servanda 
Hint) in the pcrHonn of the heirs who succeed to the prospect 
of acquiring by nms fits wan observed in the person of the 
deceased] ; the fact in that the possession enjoyed by the deceased 
dencewlB to the heir UH it were united to the inheritance, indeed 
very often the title fo completed before the inheritance has been 
entered upon. L Where a man who was absent on State service 
hiiH acquired Komothing by ?#*>*, and after that disposes of it to 
another, restitution may be granted [to the former owner], and, 
though the abtumce and the acquiHition by mm should be with no 
ill contrivance (<fahw\ the party must be debarred from making a 
Kuin by them. Similarly restitution imwt be made in all the other 
canon, an if judgment had l>een given against the party. 

31 THTC SAMK (on t</w Edkt &*) Where a man whose property 
luiH been acquired by wrm* by Koine one else who was absent on 
Btate service geta into POHHCKHIOU of the property so acquired, 
then, even if lie should Hiilwequently lose it, hi right of action to 
recover it IH not wibject to be barred by time, but is perpetual. 

32 Moi>RHTtNU8 (ttnltw 9) A man iw regarded as absent on 
State service tin noon an he \\m ntorted from the City, though he 
huB not yet reached l the province ; and, when he has once departed, 
he remains alwent till he retimm to the City. This rule applies to 
Procontwlft and their legatew and to those | legates] who are at the 
head ef a province, alao to imperial procurators who are employed 

1 For MimMrU read accetterit* Of. M. 



TET. vi] Restitution after twenty-five 267 

in the provinces, as well as military officers (tribuni) and prefects 
and assessors of legates whose names are sent in to the aerarium, 
or the particulars relative to whom 'are entered 1 in the Imperial 
Gazette (c<mmentcwriu8 printipis). 

33 THE SAME (on cases unravelled) Among those who are 
relieved in virtue of the general clause is included the Advocate 
of the fiscw. 1. Those persons who take down the pronounce- 
ments of the Prseses are certainly not absent on State service. 
2. Military doctors, inasmuch as the duty they discharge is in the 
public interest and ought not to expose them to any kind of dis- 
advantage, have a right to ask to be relieved by restitution. 

34 JAVOLENUS (Extracts from Camus 15) A soldier who has 
come home on fiirlough is not held to be absent on State service. 
1. A man who gives his services in connexion with State dues 
which are farmed out for revenue purposes is not absent on State 
service. 

36 PAULUS (on the lex Julia et Papia 3) Men who are sent to 
take out soldiers or bring them back or to superintend 8 recruiting 
are absent on State service. 1. And so are such as are sent to 
congratulate the Emperor. 2. So is an Imperial procurator, and 
not only one who is entrusted as procurator with the aflairs of a 
particular province, but one who has to manage some of such 
aflairs, though not all. Consequently a number of procurators 
of different respective departments in the same province are all 
regarded as absent on State service. 3. The Prefect of Egypt is 
also absent on State service, and so is an officer who in any other 
capacity leaves the City in the discharge of public duty. 4. The 
Divine Pius laid down the same rule for soldiers who serve in the 
Urban Cohorts. 5. The question has been raised whether an 
officer who is sent to put down malefactors is absent on State 
service ; and it was held that he was. 6. We may add the case 
of a civilian who joins an expedition by the order of an officer 
of consular rank and is killed in action ; in which case the relief 
under discussion is granted to his heir. 7* A man who has gone 
to Borne on State service is held to be absent on State service. 
Again, if he should depart from his own country on State service, 
even if he is free to go through the City, he is absent on State 
service. 8. Similarly, in the case of a man who is in some 
province, from the moment of his leaving his house, or, where he 

1 For delati read relati. Of. M. 

4 For curownt read ewwn Off&rent. Of. M. 



268 Restitution after twenty-five [BOOK IY 

has taken up his abode in his own province in order to act as a 
government official, from the moment of his beginning to transact 
public business, he is treated like a person who is absent 9. A 
man is absent on State service on his way to the camp and on his 
way back, a*s one who is going to discharge the duties of a soldier 
must go to the camp and return from it According to Vivianus 
it was laid down by Proculus that a soldier who is away on furlough 
is absent ou State service an long as he is on his way home or on 
his way back, but whilst at home he is not absent 

36 HLPIANUS (on the lex Julia ft, Papia 6) We regard people 
as absent ou Btate service only when they are absent on no affairs 
of their own, but under compulsion. 

37 PAIUAW (on the lex Jwltu e,t Papiu 3) Persons who act as 
assessors in their own province beyond the time allowed by 
Imperial enactments are not regarded as absent on State service. 

38 Uu'tANXJS (on the tex Julia et Papia 6) Where a man is 
allowed by the Kmperor to act as assessor in hit* own province by 
way of special indulgence, 1 should nay that he is absent on State 
service ; but, if he acts in the same way without permission, we 
are bound to way that, as in HO doing he commits an offence, he 
does not enjoy the privileges of those who are absent on State 
service. I. A man will be regarded its absent on State service 
for so long an he is oecupying some official post ; but as soon as 
his official duties are discharged, he at once ceases to be absent on 
Htate service ; however, the law will allow him for his return a 
certain period of time to be reckoned from the moment when he 
ceiinew to be absent on State service, viz. HO much time as he 
required in order to return to the City ; and it will be keeping 
within bounds to allow Jam the same period as the statute in that 
behalf allows to a/v/vww 1 who is returning. Consequently, if he 
goes out of the way for some object of his own, there can be no 
doubt that the time so spent will not be given him over and above; 
the time will be reckoned within which it is in his power to return, 
anil an soon as it is ended it will be said that he has ceased to be 
absent on Btate service. No doubt if he is prevented from con- 
tinuing his journey by reason of sickness, something will be allowed 
to eonwiderationH of humanity, junt as some account is taken of 
nevere weather, or difficulties of navigation, or any other accidental 
hindrance. 

* After wnflrfantibu* road praeridibwt* Of. M 



TIT. vi] Restitution after twenty-Jive 269 

39 PAULUS (Sentences 1) Where a man who is going to be 
absent on State service leaves a procurator who is able to defend 
an action on his behalf, no application that he makes for restitution 
in integrum will be entertained. 

40 ULPIAJSTUS (Opinions 5) If a soldier is in a position to take 
criminal proceedings at a time when he is acting in the service of 
the State, he does not lose the power to take them. 1. Where a 
man has been detained on an island in pursuance of a penal 
sentence in respect of which he has obtained restitution m info- 
gntm, and it is shown that during his detention some other person 
has taken possession of a portion of his property of which he was 
not deprived by the sentence, what is so taken must be restored so 
as to put him in his old position with reference to it 

41 JTJUANTJS (Digest 35) A man leaves a legacy to Titius, pro- 
vided Titius should be in Italy at the testator's death, or he leaves 
him so much a year, so long as he should be in Italy. If Titius 
gets the aid of the Pnetor on the ground that he was excluded 
from the legacy owing to his being absent on State service ; he is 
compellable to make good any faleicommissum which is left at his 
charge. Note by Mwcettus. Can any one doubt, indeed, that 
where an inheritance is restored to a soldier which he had lost 
owing to absence on State service, the title to legacies wAJidd- 
commissa will not be impaired? 

42 AMOTUS (Digest 5) A man cannot be said with truth to be 
absent on State service, when he has undertaken a legation with a 
view to his own private business. 

43 AFRICANTJS (Questions 7) If a man stipulates for so much a 
year so long as he or the promisor shall be in Italy, and after that 
it happens to one of the two to be absent in the service of the 
State, it is the duty of the Praetor to give an utilis (Mo. The rule 
is the same if the stipulation were in such terms as the following : 
"if such a one should be at Rome for the next &re years," or "if 
he should not be at Rome, do you promise to pay a hundred? " 

44 PATTLUS (on ScSnnus 2) A man who is absent on State 
service will not get restitution if he suflfers hurt in any matter in 
respect of which he would have incurred loss even if he had not 
been absent on State service. 

45 SGMVVLA. (Rules 1) Soldier in general who cannot leave 
their standards save at their ow^, peril are held to be absent on 
Sate service. , t Jt ; ; < < 



270 Restitution after twenty-five [BOOK rv 

46 MABCIANTTS (Rules 2) A man who was absent on State 

service will have a right to restitution even against one who was 
himself also absent on State service, if he has good reason to com- 
plain that he has suffered a loss. 



VII, 

ON TKANSFERS MADE FOR THE PTJKPOSE OF VARYING THE 
CONDITIONS OF A TRJAL. 



(<m tlw provincial Edict 4) The proconsul does all 
he can to secure that no man'w legal position shall be prejudiced 
by the act of another ; and, being aware that the course of a trial 
often givcB a man a groat deal more trouble where lie has to deal 
with a different opponent from the one he began with, he took 
measures to prevent thiH minchief by laying down that, if any one 
nhould tranfer the property in dispute to another so as to put 
Home one eke in his own place an a party to the suit with the 
delil>erate purpose of prejudicing hia opponent, he should be liable 
to an action in, fti&wM in which the meitfwre of damages would be 
the interest the other litigant had in not having a substituted 
opponent to deal with. I, Accordingly a party will be liable if he 
bringw in HH opponent Home one who belongs to a different province 
or JH a ponton of nuperior renourcofl ; 

2 UMPIANTJH (OH tiw Bdwt 13) or any one who is likely to 
give trouble to the other Hide : 



3 GAXUK ton itw promntiaJ, Kd'ict 1) because, if I take pro- 
ceeding** agaiiiHt a man who bclongw to another province, I am 
obliged to clo HO hi fun province, and no one can contend on equal 
tornm with a person of nuperior resources, L Again, if the de- 
fendant manumitM a nlave who in the subject of the action, the 
plaintiff in put in a more dinadvantagcouH position, because the 
Prietor alwayn favour** liberty* 2, Again, if you trannfer to another 
a piece of ground on which you have made some structure exposing 
you to au Interdict qwd m aut cltm [at my handnl, or to an 
action to keep off rainwater (M/MOV phwias arwntlw), this IB recog- 
nined OH putting me in a diHadvunta^coug position, because, if my 
proceeding had been token against you, you would have had to 
remove the structure at your own expense ; but, aw it is, my action 
to bo brought againBt a different peron from the one who did 



TIT. vn] Transfer to vary trial 2*71 

the act, and, consequently, I am compelled to remove the structure 
at my own expense ; the law being that whenever a man is in 
possession of something which was constructed by a third person, 
he is only liable to the proceedings in question so far as to be 
compellable to allow the structure to be removed. 3. If I give 
you a notification of novel structure (opits novum), after which 
you dispose of the spot, and the purchaser completes the work, it 
is held that you are liable to the action under discussion, on the 
ground that I cannot take proceedings in pursuance of the notifi- 
cation of novel structure against you, because you have not con- 
structed anything, nor can I against your alienee, because I did 
not give him the notification. 4. From all this it is clear that, 
whereas the Proconsul promises to grant restitution m integrvm, 
when the action is thereupon brought, it will be the duty of the 
judge on motion to let the plaintiff have by way of damages an 
amount 1 representing the interest which he would have had in not 
having to deal with a substituted opponent ; he may, for example, 
owing to there being such a substitute, have gone to some expense 
or suffered some other inconvenience. 5i Suppose however the 
party against whom the action in question can be brought is; ready 
to submit to an utilis actio, so as to put the plaintiff on the same 
footing as if he (such defendant) were still in possession ? In that 
case it is very reasonably held that the action founded on this 
Edict will not be allowed against him. 

4 ULPIANUS (on the Edict 13) Again, if the property comes 
to be acquired by imis by the person to whom it was transferred, 
so that no action can be brought to recover it from him, this Edict 
applies. 1. Moreover it may happen that a man's possession is 
terminated without any dolus mcdu$, but still the change was 
effected in order to alter the conditions of the trial ; and there are 
many other cases of the same kind. On the other hand a man 
may cease to be in possession, and that with dolus malus, and 
yet he may not have made the change with a view to altering the 
conditions of the trial, so that he incurs no liability under the 
terms of the Edict: as a man does not transfer property who 
simply abandons possession. However the Prsetor does not find 
fault with the behaviour of a man who s shows this anxiety to be rid 
of property, where his object is o avoid being exposed to constant 
litigation about it, indeed sach a very unassuming resolution, 
proceeding as it does froifc the party's hatred for actions at law, is 

1 For tantum judici* ve&A judlcis tantum. Of. M, 



272 Transfer to vary trial [BOOK iv 

not a thing to be censured, the Prsotor only deals with the case 
of one who, without having any wish to lose the property, trans- 
fers the defence to another, so as to give the plaintiff, as oppo- 
nent instead of himself, some person who will give him trouble. 
2. Pedius (b. 0) declares that this Edict deals not only with trans- 
fers of ownership, but transfers of possession too ; otherwise, he 
Hiiyw, if the defendant to an action in rem assigns the possession to 
some one else, he will avoid liability. 3. But where a man's reason 
for putting another in his place as party to the action is bad health 
or old age or urgent business, this is not a case in which he is 
liable under this Edict, aw the Edict refers expressly to dolm 
malm (malicioun contrivance) ; indeed otherwise it would amount 
to prohibiting the very practice of carrying on litigation through 
procurator, as the property iw generally transferred to them, if 
the ocemon requires it 4 The Edict comprises the case of real 
servitudes, provided the trannfer fa made with dolus malus, 5. The 
mesisure of dainagew in this action is the -extent of the plaintiff's 
interest; consequently, if he wan not really owner, or the slave 
trauferred died without any fault of the transferor's, the action 
cannot Ix^ brought, unless the plaintiff had some interest on inde- 
pendent grounds* C. The action is not for vindictive damages, it 
in an action to recover property or debt in pursuance of the 
judge's intimation ; hence it IB allowed to the heir ; but against 
the heir, 
6 PAUUTB (on the Miet 1 1) or any one similarly placed, 

6 UUHANUB (m the Edict 13) or after the lapse of a year, it 
in not allowed, 

7 OACUH (on tJw provincial Edict 4) because it is meant for 
the recovery of property, though, at the name time, it may be said 
to be founded on a delict. 

8 PAULIW (on th<>< Kdiat 1%) A man is liable under this Edict 
oven where ho produce** a thing on being called upon, if he does 
not, on the intimation of the judge, put the case at law on its 
original footing. 1. The Prtotor wayn: "or any transfer made for 
altering the condition* of a trial " ; this refers to the conditions of 
a future trial, not of the one already proceeding, 2. A man is 
regarded an trauHferring a thing oven where he soils what belongs 
to Home one cine- & But if ho makes the transfer by appointing 
an heir or bequeathing a legacy, the Hklict will not apply. 4 If a 
man tnumfern Bomcthing and then taken it back, he will not be 
liable under the Kdict. 5. A inau who inakow his vendor take 



TIT. vn] Transfer to vary trial 273 

back what he sold, by way of redhibition, is not held to get rid of 
property in order to alter the conditions of a trial 

9 PAULUS (on the Edict of the curule Ediles 1 ) Because, when 
the slave is given back by way of redhibition, everything is put on 
its former footing ; so that the party who returns the thing is not 
held to have disposed of it in order to vary the conditions of a 
trial, unless, indeed, the party restores the slave in this manner 
with the very object in question, and, except for that, would not 
have restored him at all 

10 ULPIANTTS (on the Edict 12) Indeed even if, where you 
desire to sue me for something at law, I deliver it to another in 
pursuance of an obligation in that behalf, the Edict will not apply. 
1. If the guardian of a boy under age, or the agnate [curator] of a 
lunatic transfers the property, there is an utUis actio open, as the 
parties themselves under guardianship or curatorship are incapable 
of entertaining the fraudulent intent. 

11 THE SAME (Opinions 5) Where a soldier applied for leave 
to bring an action in his own name for landed property which he 
declared to have been given him gratuitously, he was answered 
that if the gift was made in order to vary the conditions of a 
trial, the action ought to be brought by the previous owner, so aa 
to let this latter have the credit of bestowing the actual property 
on the soldier, and not a mere right to sue some one. 

12 MABCIAKTTS (IriAtifotfions 14; If a man should dispose of 
[his share in] a piece of property in order to avoid having to defend 
an action communi dividundo, he is forbidden by the Lex Lidnnia 
to bring an action of the same kind himself; his object might, 
for instance, be to contrive that some purchaser in a commanding 
position should make a bid for it, and get the property for a low 
price, so that by that means he might afterwards recover it himself. 
After this if the party who transferred his share should desire to 
bring an action communi dividwndo, he will not get a hearing ; 
and if the purchaser should wish to take proceedings, he is pro- 
hibited doing so under that head in the Edict in which it is 
provided that a man shall not transfer property in order to vary 
the conditions of the trial. 



M.J. 18 



274 On arbitrations [BOOK iv 



VIII. 

OK MATTERS BBFBBBED: ON PERSONS WHO UNDERTAKE ARBI- 
TRATIONS WITH A VIEW TO PRONOUNCING AN AWARD. 

1 PAULAS (on the Edict 2) Arbitration is framed on the model 
of judicial trialn, and its object is to put an end to litigation. 

ULFIANUS (on the Edict 4) An arbitration is held not to 
give ground for an exccptio, but for an action for a penalty. 

3 THK SAME (on t)w Edict, 13) According to Labeo, where a 
matter in referred to arbitration, and an award is given by means of 
which a perHon is to be released by a youth under twenty-five from an 
action on guardianship, the Prastor ought not to uphold the award, 
and no action will be allowed to recover the penalty due in pur- 
nuance thereof. 1. However true it fa that the Praetor does not 
compel any one to undertake an arbitration, since such an office 
fa optional and at will, and there in no obligation to exercise 
jurifuliction ; nevertheless, where a man han once undertaken the 
duty of arbitration, the Pnctor holdn that the matter IB a proper 
Bubject for his care and clone attention ; not merely because the 
Prtotor in anxioun that dfaputoH nhould be set at rent, but because 
it in not right that people whould be disappointed who have chosen 
that particular person to decide between them under the impression 
that he wan an impartial judge. Suppose that after the case had 
been already once or twice gone into, the private affairw of both 
partieH laid bare, and secret feature of the matter disclosed, the 
arbitrator were, out of partiality for one side, or becatise he was 
influenced by corrupt motive**, or for any other reanon, to decline 
to give an award ; can any one Hay that in nuch a case it would not 
be perfectly jtint that the Pnctor Hhould have to interpose, so as to 
make the arbitrator discharge the office which he had undertaken? 
& The Proctor nay* "A man who undertakes arbitration after 
mutual Hubmiwion with promiHOH to pay money/' eta 3. Let us 
eouHider the pcrwmal position of arbitrator**. There is no doubt 
that, whatever an arbitrator^ rank may be, the Prtotor will compel 
him to diHcharge thoroughly the office he haw undertaken, even 
if ho in a coroailar person, unlcHw he Hhould be placed iu some 
magiHterial or other authority, uch aw that of consul or pnotor, as 
the Pnotor haB no power over those in nuch positions; 1 

* For /ioc read hot* Of, M, 



. vm] On arbitrations 275 

4 PATOTTS (on the Edict 13) there being no way in which 
magistrates can be coerced who are of higher or equal authority 
[as compared with the officer who seeks to coerce them], nor does 
it matter whether they undertook the office during their tenure 
of their present magistracy or before. Inferior officers can be 
compelled to act 

5 ULPIANUS (on the Edict 13) Indeed, even a son under 
potestas can be compelled. 

6 GAIUS (on the provincial Edict 5) Moreover, it is said that 
a son under potestas can be arbitrator in a concern of his own 
father's ; in fact, the common opinion is that he can even be 
a judge. 

7 ULPIAOTS (on the Edict 13) Pedius says (b. 9) and so does 
Pomponius (b. 33) that it is a matter of small account whether an 
arbitrator is freeborn or a freedman, whether he enjoys an un- 
blemished reputation or is marked with ignominy. Labeo says 
(b. 11) that a reference for arbitration cannot be made to a slave ; 
and this is true. 1. Hence Julianus says that, if a reference is 
made to Titius and a slave, then Titius himself cannot be compelled 
to give an award, because he undertook the arbitration jointly 
with some one else, although, he adds, there is no such thing as 
the arbitration of a slave. But how will it be if Titius pro- 
nounces an award ? In that case the penalty will not become due, 
because he does not pronounce the award under the conditions he 
engaged for. 

8 PATJLUS (on the Edict 13) But if the terms of the submission 
were to the effect that the award of either party singly should be 
valid, then Titius, he says, can be compelled to act. 

9 ULPIANUS (on the Edict 13) Again, if the reference is made 
to a slave, and he pronounces an award after he has obtained his 
freedom, I should say that if he acts with the consent of the 
parties when he is a free man, it is valid. 1. But a reference 
should not be made to a boy under age, or a lunatic, or a deaf 
man, or a dumb man, so Pomponius says (b. 33). 2. When a 
man is a judge, he is forbidden by the lex Julia to undertake an 
arbitration in the same matter that he has before him as judge, or 
to order a reference to himself; and if he should pronounce an 
award, no action for the penalty win be allowed 3. Other cases 
might be added of persons who are not compellable to make to 
award, for instance, those in which the arbitrator is clearly corrupt 

182 



276 On arbitrations [BOOK iv 

or acts on some dishonorable motive. 4. Julianas says, if both the 
contending parties give the proposed arbitrator a bad name, the 
Praetor ought not to diwpenfce with his services as a matter of 
course, but only on cause shown, 5. According to the same 
writer, if the parties treat the arbitrator's authority with contempt 
and go to the Court 

10 PAUUTH (on the Edict 13J or to some other arbitrator, 

11 UUMANITS (0*1 the Edict l;*j and after that come back to 
the first arbitrator, the Pnetor ought not to compel him to go into 
the case, the partien having put nuch a slight upon him as to reject 
him and go to some one elwe. 1. The arbitrator, he says, is not to 
be compelled to pronounce an award, unless a regular submission 
was made. 2. Where the Pnetor speaks of "mutual engagements 
to pay/' thin must not be understood to imply that there is on both 
Bidefc a promise of a penal sum of money, to be payable if either 
party should refuse to abide by the arbitrator's award ; but to 
include the cane of anything elae being promised by way of a 
penalty ; we find thin in Pomponius. Suppose then goods are 
placed* ill the hands of the arbitrator, on the understanding that 
he in to give them to the Hucccnsful party, or that, if either party 
should refuse to obey his award, lie IB to give such goods to the other, 
will he be compelled to pronounce an award? 1 should say that 
he will A similar rule holds where a Rpecific quantity [of things 
determined in kind) is left in MH hands with the same object 
On the sumo principle therefore where, in the stipulations made, 
one man promises a thing and another money, the submission is 
complete, and the arbitrator will be compelled to pronounce his 
award, & In some cases, aw Pomponius tolls us, the mutual 
promises can IKJ very well made by bare agreement ; for example, 
where the two parties arc mutually indebted, and they agree that 
if either of them should refune to obey the arbitrator's award, he 
shall not sue for what in owed him by the other. 4. Again Julianus 
saytt that the arbitrator in not to be compelled to give an award, if 
one party makes the promise and the other doen not. 5* He holds 
the same where the submission involves the promise of a penalty 
under a condition, for instance, " HO many thousands, if such a ship 
cornea back from AHIU" ; an the arbitrator cannot be compelled to 
pronounce an award until the condition is fulfilled, for fear lest his 
award should have no effect, through the failure of the condition. 
PomponiuH haa the name thing (on ti& Edict 3), 

12 PAVMJS (OH the ttdict IS) to this ewe perhaps the only 



TET. vm] On arbitrations 277 

thing giving ground for an application to the Praetor will be 
the desire that, if the time appointed in the reference can be 
enlarged, an order may be made accordingly. 

13 ULPIANUS (on the Edict 13) Pomponius says that if one 
party has a formal release given him of the penal sum agreed 
upon, the arbitrator ought not to be compelled to give an award. 

1. The same writer says also that if the submission is of my claims 
only, and I stipulated for a penal sum to be paid by you, it is a 
point worth considering whether this is any submission at all. 
But I do not see myself what is his difficulty ; if his point is that 
the agreement only refers the claims of one of the parties, there is 
no reason in his remark, as it is quite open to parties to refer one 
single question ; but if it is that the formal promise is only made 
on one side, this is to the purpose. At the same time if the 
promisee in this stipulation is the party who eventually sues, it 
may be said that there is a good submission, because the party 
who is sued has a sufficient defence ; for example, he can plead 
the paefom by way of exceptio ; as for the party who sues, if the 
arbitrator's award is not obeyed, he has got the formal promise 
to rely upon. However, I do not think this argument is sound ; 
granting that the party has a good exceptio, this is not a sufficient 
rfeason for the arbitrator being compellable to deliver an award. 

2. A man is held to have undertaken an arbitration, so Pedius says 
(b. 9), when he has assumed the duties of judge and promises to 
give a decision which shall finally dispose of the matters in dispute. 
But where, the same writer proceeds, the supposed arbitrator only 
intervenes so far as to try whether the parties will allow their 
dispute to be disposed of by his advice and authority, he cannot 
be held to have undertaken an arbitration. 3. A man who is 
arbitrator in pursuance of a submission is not compelled to pro- 
nounce an award on those days on which a judge is not compelled 
to deliver judgment, unless the time agreed upon m the submission 
is on the point of expiring and it cannot be enlarged. 4. Similarly, 
if he should be pressed by the Prsetor to pronounce his decision, 
it is perfectly just that be should havs some time allowed him for 
doing so, if he declares on oath that he has not yet formed a clear 
opinion about the matter. 

14 POMPONITTS (on Q Mutius 11) If the formal reference is 
made without a day being assigned, it is absolutely necessary thai 
the arbitrator should appoint a day, I mean subject to the consent 
of the parties, and that th^ case should be gone into accordingly 



278 On arbitrations [BOOKIV 

if he omits to do this, he can be compelled to give his decision at 
any time. 

15 ULPIANUS (on the Edict 13) Though the Prjetor should in 
his Edict declare absolutely that he will compel the arbitrator to 
give a decision, still, in some cases, he ought to listen to what he 
has to say, and allow his excuses, on due cause shown ; suppose, 
for instance, the parties give him a bad name, or there comes to 
be some deadly enmity between him and the parties or one of 
them, or he can claim to be excused the duty on the ground of his 
age, or a fit of illness occurring to him after the reference, or the 
necessity of attending to his private affairs, or urgent occasion to 
go to a distance, or the duty of some Government office : all this is 
in Labeo. 

16 PAXJLUS (on the Edict 13) Or the reason may be any other 
difficulty in which he IH put after assuming the arbitration. But, 
in a case of ill-health or similar grounds of excuse, he may be 
compelled to postpone the matter, on sufficient cause shown. 
1. Where an arbitrator is engaged in a case of his own, whether 
of a public or private nature, he ought on that ground to be 
exeuHed from adjudicating on the matters referred to him, at any 
rate where the time agreed cannot be enlarged ; if it can, why 
tthould not the Pnotor compel him to enlarge it, as he is able to do 
so ? Thin i a thing which may sometimes be done without any 
inconvenience 1 to the arbitrator. If again both parties wish him 
to give the award, must we not nay that, although no undertaking 
wan given an to enlarging the time, ntill the arbitrator can only 
get an order relieving him of the neccHHity of proceeding, on the 
ground of bin own cane, on the terms of hin giving his consent to 
the matter being referred to him afreah ? I assume in all this that 
the time i* on the point of expiring. 

17 UXJIANUB (on the Edict 13) Again if one of the parties 
execute** a ( <wmo bonomm* (alignment for the benefit of his 
creditor**) JuliamiH inform** UB (/% b. 4) that the arbitrator cannot 
be compelled to give an award, because the party in question can 
neither HUD nor be mied. L If the parties come back to the 
arbitrator after a long interval of time, then, according to Labeo 
he is not cowpellablo to give an award 2* Again, if there are 
more than one who undertook the arbitration, no single one can 
be compelled to give an award ; it must be either all or none, 
a Hereupon Pamponiun wks the following question (b. 33) : 

dittrwtiune for dittinotion*. Ot M. 



TIT. Tin] On arbitrations 279 

Suppose a reference to arbitration is made in such terms that what- 
ever commends itself to litius as examiner, Seius is to pronounce 
accordingly, which of the two is compellable to act ? I should say 
myself that such an arbitration is invalid, being one in which the 
arbitrator has not free power of pronouncing his opinion. 4. If 
the terms of the submission are that the parties shall abide by the 
award of Titius or Seius, then, as Pomponius says, and our opinion 
is the same, the reference is valid ; but the arbitrator who will 
be compelled to give the award is whichever the parties agree 
upon. 5. If an agreement is made to refer the question to two 
persons, on the terms that, if they should disagree, they are to add 
a third, I should say that such a submission is void ; because they 
may disagree as to whom they shall add. But if the terms are 
that the third person so added is to be Sempronius, this is a good 
submission, because they cannot disagree as to whom they shall 
add. 6. But let us take a more general question, viz, this. If 
a reference is agreed upon to two arbitrators, must the Praetor 
compel them to give a decision ? The fact is that, considering how 
prone men are by nature to disagree, the matter referred is hardly 
likely ever to be settled. Where the number is odd, the reference 
is upheld, not because it is likely that all the arbitrators will agree, 
but because, even if they disagree, there is a majority whose 
decision can be adhered to. However the common practice is to 
refer the matter to two arbitrators, and then the Praetor is bound 
to compel them, if they disagree, to choose some third person 
whose authority can be obeyed. 7. Oelsus says (Dig. b, 2) if the 
reference is to three, then it is enough for two to agree, provided 
the third person is present as well : but, if he is not present, then, 
even though two agree the decision is void, because the reference 
was to more than two, and, if the third had been present, he might 
have brought the two over to his own opinion : 

18 POMPONIUS (Epistles cmd various passages 17) just as, where 
three judges are appointed, a judgment given by two who agree 
together in the absence of the third is invalid, because the judg- 
ment given by the majority of the judges is only upheld where 
it is clear th&t every one gave some judgment or other. 

19 PAOTCTS (on the Edict 13) What kind of decision it is that 
the arbitrator gives is a question with which the Praetor is not 
concerned, so long as his decision is in accordance with his real 
opinion. Accordingly if the matter was agreed to be referred, 
on the understanding that the arbitrator should pronounce some 



280 On arbitrations [BOOKIV 

particular decision, this, says the same writer, is no arbitration 
at all, and according to Julianua (Dv</. b. 4) the arbitrator cannot 
bo compelled to give any decision. 1. An arbitrator is considered 
to give a decision when, in making his pronouncement, he intends 
that there whould be an end of the whole dispute in pursuance 
of it. But whore he has undertaken to arbitrate on a number of 
different points, then, unless he deals conclusively with all the 
matters iu dispute, no award can be said to be given, and he will 
trtill have to be compelled by the Prsotor to act. 2. This being 
the caHC, a fair question to consider is whether he cannot alter his 
decision ; and in fact it has been discussed as an independent 
question, supposing an arbitrator first orders something to be 
handed over and then forbid** it ; whether one ought to abide by 
hiH order or by Inn prohibition. Habinus was of opinion that he can 
alter hin decision. Oassius makes a good defence of his master's 
opinion, and sayn thatSabinuH WJIH not thinking of a decision which 
concludes an arbitration, but of an order made in the course of the 
cane being got ready for trial ; suppose, for instance, he ordered 
the parti en to attend on the calendu (firnt day of the month), and 
afterwards told them to come on the iden (thirteenth or fifteenth) ; 
then (X)asBWH Haidj, he hun a right to change the day. But if he 
had punned judgment on the defendant or dismissed the plaintiff's 
cane, then, as he would ceane to be arbitrator, he could not alter 
hiH decision, 

20 (JAIUB (tm the prwindal JEdwt 5) as the arbitrator cannot 
correct hw decision, even though he nhould have made a mistake in 
pronouncing it. 

21 Uni'iANUH (on the Kdict 1ft) Suppose however he wa& 
appointed to decide Heveral matters in dinpute which were entirely 
independent of one another, and he hat* given a decision as to one, 
but not, HO Tar, an to any other; han he ceased to be arbitrator? 
Ix>t UH cotmider whether he cannot alter law award as to the first 
question in dispute on which he hon already pronounced. Here it 
make* a groat deal of difference whether it was part of the agree- 
ment for reference that he nhould pronounce as to all the questions 
taken together, or it wan not : if it wan, then he can make an 
alteration, as he HUB not yet given hin award ; but if he was equally 
at Ht>erty to deal with the various quowtionB separately, you may 
nay that there are HO many different reference^ HO that, as far as 
the particular quention SH concerned, he hua ceased to be arbitrator* 
L If an arbitrator fthould oxprewa hfo award than : that it appeared 



TTT. vm] On arbitrations 281 

to him that Titius did not owe anything to Seius; then, even 
though he should not proceed to forbid Seius to sue for the money 
he claimed, still if Seius did sue, he must be held to act against the 
arbitrators award : this was laid down by Ofilius and Trebatius. 
2. I should say that an arbitrator can appoint a particular day for 
payment, and this seems to be Trebatius's opinion too. 3. Pom- 
ponius says that where an arbitrator gives an award in terms which 
are not specific, it has no force ; for instance if he were to say : 
"you must pay him what you owe him," or "the division you have 
made must be adhered to," or "you must accept the same pro- 
portion of your demand that you have paid your own creditors." 
4. Again if the arbitrator declares that no penalty is to be sued 
for in pursuance of the agreement for reference, I find it is said 
by Pomponius (b. 33) that this has no force ; and this is quite 
reasonable, as the question of penalty was not the subject of the 
reference. 5. According to Papinianus (Questions b. 3), where the 
day for hearing the question referred has passed, but the parties 
arrange for a later day and agree upon a fresh reference to the 
same arbitrator, but he declines to undertake the ariritration on 
the second reference, he 'cannot be compelled to undertake it, 
provided it was not owing to any default of his own that he did 
not discharge the duty before : but, if the delay was his own feult, 
it is perfectly just that he should be compelled by the Praetor 
to undertake the fresh arbitration. This all holds upon the 
assumption that no undertaking was given in the first agreement 
as to enlarging the time ; if any such was given, and he himseli 
enlarged the time accordingly, then he remains arbitrator, 6. The 
expression "full reference* is employed to describe a reference 
which is expressed to be arranged "in respect of matters and 
questions in dispute"; this will comprise all disputed points. Bat 
if only one matter is really in dispute, though the agreement should 
have been so made as to bespeak a " full reference," still all rights 
of action are saved which depend upon other grounds : the only 
real subject of a reference is whatever it was agreed to refer, 
However the safer plan is, where a man only desires an arbitration 
on one point, to specify that particular point in the agreement 
to refer and no other. 7* The parties are not bound to comply 
with the award, where he arbitrator orders them to do something 
dishonorable. 8. If the parties come before the arbitrator within 
the time agreed upon, and he then orders them to come again affeet 
the time, no penalty will be due [from a defaulting party]. 9. H 
one of the parties should fall to appear because he is hindered by 



282 On arbitrations [BOOK iv 

ill-health or by absence on State service, or by having to act as 
a magistrate, or for any other good reason, then, according to 
Proculus and Atiliemus, the penalty becomes payable ; still, if he 
is prepared to make a fresh agreement for reference to the same 
arbitrator, an action against him will be disallowed, or he can 
defend himself by an txceptio. This however is only true where 
the arbitrator himself is prepared to undertake the fresh arbitration, 
since, as Julianas very properly says (/%b. 4), he is not to be com- 
pelled to undertake it against his will ; but in any case the party 
himnelf in freed from liability to a penalty. 10. If the arbitrator 
orders the parties to come before him, ay, in some province, whereas 
the HnbnuHHion wa made in Rome, it is a question sometimes asked 
whether he cannot be disobeyed with impunity. The better opinion 
its that expressed by Julianuw (b. 4), that the place implied in the 
agreement to refer is whatever place the parties intended their 
engagements to apply to, consequently the arbitrator may be 
disobeyed with impunity if he orders the parties to attend at some 
other place. How then if it does not appear what place the parties 
did intend? The best rule would be that the place implied must 
be held to be the place where the agreement was made. Suppose 
however he nhould require thorn to attend in some part of the 
suburb**; PcftanuH admits that this i valid. My opinion is that 
thin in only HO whore the arbitrator IB a man whose standing and 
repute allow of IHH discharging lm office habitually in out-of-the-way 
place**, and the parties can easily get to the place, 1L But if he 
nhould call upon them to come to Home low place such as a tavern 
or a brothel, then* an ViviauuB Hays, he can beyond all doubt- 
be diHobeyed with impunity ; and Cetaus confirms this opinion 
(Dig. I>. 2). Thereupon the latter writer raises this nice point; 
suppose the place OHHigned in one in which one of the parties 
cannot appear coitKuitently with Hclf-ronpcct, but the other can; 
whereupon the one who could come without disgracing himself 
failn to come, and the other, whone self-respect is injured by his 
coming, does come, will the penalty agreed upon by the terms 
of reference be payable on the ground 1 that the act which was 
promined wa not executed? Hero Celwus is very properly of 
opinion that the penalty IB not incurred ; it would be absurd, he 
aaid, that the order tthould bo good as applied to one of the parties 
and not w applied to the other. 12* We may next consider, 
supposing a party nhould decline to hand over what the arbitrator 
order*, how long munt he be in default for an action on the etipu- 

1 Dole an. H. 



TTT. vra] On arbitrations 283 

lation to be admissible? As to this, if no day was named, then, 
as Celsus says (Dig. b. 2), some moderate interval of time is implied ; 
and, when this has passed, the penalty can be sued for at once ; 
still, he says, if the party complies with the award before joinder 
of issue in the action on the stipulation, that action cannot be 
proceeded with ; 

22 PAULUS (on the Edict 13) unless indeed the plaintiff in the 
action had some particular interest in the money to be awarded 
being paid immediately. 

23 ULPIANUS (on the Edict 13) Celsus tells us that if an arbi- 
trator orders something to be given by the first of September, and 
it is not given, then, even if it is offered subsequently, still, the 
penalty contracted for having once become due, the right of action 
in pursuance of the submission is not lost, since it remains a fact 
that the thing was not handed over before the first of the month : 
but, he adds, if the party accepted it when it was tendered, he 
cannot sue for the penalty, as he can be barred by an exceptio 
doli It is a different case where the order simply was to give 
[without mention of time]. 1. The same author says that if the 
arbitrator orders me to pay something to you, and you are pre- 
vented from receiving it by ill-health or on some other sufficient 
ground, then, in the opinion of Proculus, the penalty cannot be 
sued for [by you], even if you are ready to receive the money after 
the first of the month, and I decline to pay it. However, he him- 
self holds very rightly that there are two orders made by the 
arbitrator, one to pay the money and the other to pay by the first 
of the month ; consequently, that even if you do not incur the 
penalty by not paying by the first of the month, because it was 
not your fault, still you do incur a penalty with respect to the 
other part by not paying at all 2. The same author says that 
abiding by an award cannot be anything else than taking measures, 
so far as it depends on one's self, to procure that the award shall 
be complied with. 3. Celsus says further that if the arbitrator 
orders me to pay you a sum of money on a particular day, and yon 
on that day decline to receive it, it may fiurly be argued that as a 
bare matter of civil law the penalty is not incurred ; 

24 PAULTJS (for the Edict 13) but nevertheless, he adds, if; 
subsequently to that, you are ready to receive it, I cannot with 
impunity decline to pay it, as up to that time I have not paid. 

25 ULPIANUS (on the Edict 13) Labeo says that where it 



284 On arbitrations 



[BOOK iv 



provided in the agreement for reference that the arbitrator should 
pronounce \m award on all points on the same day, and that he 
should be at liberty to enlarge the time, then, if such arbitrator 
after pronouncing an award on some points and not on others^ 
enlarges the time, the enlargement is valid, and the award he has 
pronounced can be disobeyed with impunity. This view of Labeo 
is approved of by PomponiuB, and 1 hold the same opinion, as he 
has not discharged his duty in respect of the award. I/ These 
words "(he may] enlarge the time for arbitration" give the arbi- 
trator no power beyond that of postponing the day of decision 
consequently he cannot reduce or alter the scope of the original 
reference, HO that he will be bound to consider the other points too, 
and give one award as to the whole. 2. If in the original agree- 
ment for reference the promincs wore made with a surety, then, 
according to Labeo, the deferred hearing must be on the same 
term**. However, PomponiuB in in doubt whether the sureties 
must 1x5 the wane or may be others equally substantial : what is 
to be done, he UH!VH, if tho original Huretiea decline to act again? 
However, I should nay, if they decline, others must be found who 
are equally suitable ; 



26 PAITLHH (<;M //w Kil'Mi 13) HO that it shall not be in the 
power of HimtticH who decline to renew their engagement to cause 
the penalty to be incurred. A Himilar rule must be applied if the 
Hurctien die. 

27 UIJMANITK (on thfi Edirt 13; The arbitrator can enlarge the 
time either in Inn own pornon, or through a messenger, or by letter. 
1. If the agreement to refer made no mention of the heir or other 
HUcccHHor, it drops on tho death of either party. The present 
practice in not in accordance with Labeo'w opinion, who held that 
if the arbitrator orders a man to pay a Hum of money and the latter 
(lien without paying it, the penalty may bo demanded, even though 
hiw heir in ready to tender tho money, 2, The parties are bound 
to abide by the award which the arbitrator pronounces on the 
quention referred to him, whether it iw just or uigiust ; a person 
who agreed to refer the matter han only himself to blame [if he 
in not Hatiwftedj ; a rescript of tho Divine Pius ends thus: "the 
party muni make up bin mind to content himself with the award, 
even if it in not quite reasonable," 3. If there are several arbi- 
tratorH, and they pronounce different awards, the parties are free 
to decline to abide by their award ; but if a majority agree, their 
decinion muHfc be followed, or cine the penalty can be demanded. 



TIT, Yin] On arbitrations 285 

Hereupon we find this question raised in Julianus : suppose there 
are three arbitrators and one orders 15 to be paid, the second 10, 
and the third 5 ; which award is to be followed ? to which Jnlianus 
says 5 must be given, as all the arbitrators agreed to the extent 
of that sum. 4. If any one of the parties foils to attend, then, 
seeing that what he does prevents the arbitration being held, the 
penalty can be demanded. On the same principle an award pro- 
nounced when the parties are not all present will have no force, 
unless it was specially provided in the submission that an award 
should be given even if one or both parties should be absent ; 
and it is the party who felled to attend who incurs the penalty, 
because it is owing to him that no arbitration is held [as intended]. 
5. An arbitrator is held to pronounce his award in the presence of 
persons when those before whom he pronounces it are persons 
possessed, of intelligence ; but it cannot be said to be pronounced 
" in the presence of" a lunatic or one who is deranged ; indeed, an 
award is not held to be pronounced " in the presence of" a boy 
under age, unless it is done before his guardian ; this is what 
Julianus says on the above points (Dig. b. 4). 6. If either party 
being present obstructs the arbitrator in pronouncing his award, 
the penalty can be sued for. 7. If no penalty was included in the 
terms of the submission, but the party simply promised that the 
award should be complied with, there will be an action against 
him for unliquidated damages. 

28 PAULTTS (on the Edict 13) It is of no consequence whether 
the sum agreed on by way of penalty is specific or unliquidated, 
for instance, the agreement may be in the terms " whatever the 
matter may be worth." 

29 ULPUNTJS (on the Edict 13) If an action for money is 
brought against a person who the arbitrator ordered should not 
be sued for it, this is a transgression of the arbitrator's award. 
How then, if the action is brought against a surety of the same 
person, will the penalty be incurred ? I should say that it will, 
and so Sabinus says, since the action is virtually against the 
principal If on the other hand I agree with the surety to refer 
the matter as far as he is concerned, but I due the principal, the 
penalty is not incurred, unless the surety bad an interest in my 
not suing. 

30 PATTLTJS (on he Edict 13) Vftvere, after an agreement tft 
refer some matter to arbitration, one of the parties sues jb tb$ 
ordinary court, some authorities hold that the Praetor will noi 



286 On arbitrations [BOOKIV 

interfere to compel the arbitrator to pronounce an award, because 
now there can be no penalty payable in the matter, any more 1 than 
if the agreement to refer were annulled. However, if this view 
should prevail, the result will be that a man who regrets that he 
made an agreement to submit a matter to arbitration will have it 
in his power to evade the submission. Accordingly it must be 
held that the party in question has incurred the penalty, and an 
action to enforce it can be carried through before the judge in the 
regular way. 

31 ULPIAKUS (on the Edict 13) When anything is done contrary 
to a promise made on stipulation, the promise can only be sued 
upon where the breach was committed without there being any 
dolm vwdus (malicious contrivance) on the part of the promisee ; 
a promise can only be sued upon at all subject to this proviso, that 
a man is not to derive a benefit from his own dolm. But if an 
agreement to refer contains a special clause providing for the case 
of something in the mutter being done with dohtis, then the party 
who acts with tfoh/8 can be sued upon the promise ; accordingly, 
where a. man uses bribes or solicitation, so as to corrupt the arbi- 
trator or the pleader on the other side, or some one of those to 
whom he ha>s committed his own case, be can bo sued on the clause 
which refers to dolns ; also where he circumvents his opponent by 
craft ; in short, if ho behaves with any dolm in the course of the 
proceeding, the action sx stipidatu will be available; conse- 
quently, if Huch opponent desires to proceed by an action de dole, 
it will not bo allowed, as he has the action ex stipulatn. If however 
fiuch a clause as above mentioned is not inserted in the agreement, 
there in room for an action or an exwptw founded on dolm. Such 
an agreement for reference, that is, one which includes a clause 
mentioning dolm, is a complete submission. 

32 PAUMTK (MI the. Kditt* Itt) In the case of a submission to 
arbitration no attention is paid to the question whether the penalty 
ia greater or lews than the amount which the matter at issue is 
worth* 1. When the penalty is once incurred the arbitrator will 
not bo compelled to pronounce an award. 2* If a woman is a party 
to a BubmiBHiou on behalf of a third person, this is no valid submis- 
sion of a money claim, because it is a c$we of intervention on behalf 
of some one O!HO. & On the whole, it comes to this : the Prastor 
is not to interfere where either, to begin with, there was no sub- 
miiwion, or there was one, but it fo uncertain aB yet whether it is 

1 Read wet for wt. 



TIT. nn] On arbitrations 287 

one in pursuance of which a penalty can be sued for, or the penally 
has ceased to be recoverable, because the contract is avoided by 
lapse of time, or by death, or by a formal release, or by a judicial 
decree, or by simple agreement. 4 As to the question whether, 
where some priestly office devolves on an arbitrator, he will be 
compelled to pronounce an award, this is a point to consider about 
[but probably he will not] ; an excuse on that ground would be 
allowed not merely out of regard to the office of the person himself, 
but to give glory to God, to whose worship a priest ought to give 
himself up. However if he assumed such an office after he was 
chosen arbitrator, then even a priest is bound absolutely to give an 
award. 5. Again, the arbitrator is not to be compelled to act if 
the matter has been compromised, or a slave, who was to be the 
subject of the arbitration, is dead ; unless indeed, in this last case, 
the parties have some interest in the matter being proceeded with. 
6. Julianus lays down the following without farther discrimi- 
nation; if, owing to a mistake, parties go to an arbitrator on a 
question about some delict which entails in/amia, or about some- 
thing which the law makes a subject for a criminal trial, as for 
instance a question of adultery or murder or the like, the Praetor 
ought to forbid the arbitrator to give a decision, and if he gives 
any, the Praetor ought not to allow it to be put in force. 7- If a 
reference is agreed upon in respect of a question at issue at law as 
to a man's freedom, the arbitrator, as is very reasonable, will not 
be compelled to give an award ; because the law favours liberty, 
so that the matter ought to go to a higher tribunal. The rule is 
the same where the question is as to whether a person is freebora 
or a freedman, also where it is alleged that freedom has to be given 
in pursuance of a jfi^-commissum. The same rule applies to an 
actio popularis, 8. If one of the parties to a submission is a slave, 
in the opinion of Octavenus, the arbitrator cannot be compelled to 
pronounce an award, and, if he does pronounce one, no proceedings 
can be allowed for the penalty in the nature of an action de peculio. 
If the other party to the submission is a free man, it is a question 
worth considering whether proceedings for a penalty can be allowed 
against him ; but, on the whole, I should say not 9. Again, if a 
man is party to a submission in Borne, [theft goes away,] and after- 
wards comes to Borne as a legate, in this case the arbitrator is not 
compellable to give an award, any more than the party himself, if he 
had before joined issue in an action, would be compelled in the same 
case to prosecute it ; and it makes no difference whether the party 
was a legate on the first occasion too or not But if he makes the 



288 On arbitrations [BOOK rv 

BubmiBsion now, being a legate at the time, then I should say that 
the arbitrator can be compelled to give an award ; because, if the 
party had under the same circumstances joined issue in an action 
at law, he would bo bound to proceed with it Some persons how- 
ever are in doubt on this point, though without sufficient reason - 
but at any rate they would be in no doubt at all, if the question 
which the party agreed to refer while he was a legate were one 
arising upon a contract which he made while a legate ; because on 
Hueh a question he would be equally compellable to sustain a trial 
at law. With regard to the point first mentioned, one question 
worth considering in whether, supposing the legate made the 
HubmiHHHm before ( leaving Rome], the arbitrator can be compelled 
to pronounce an award on the legated own application, as, on the 
principle firnt relied on, it might be held unjust to leave it in the 
legated own power [to determine whether the arbitrator shall give 
an award or not). However, thin cane will be treated in the same 
way an would be that of his desiring to proceed by an action at 
law, which he i* quite free to do. f lint ?*& an arbitration is to be 
treated Ufa an ttcfjuii bnmyht in the reynlar way, so that if he 
w/AAw the arbitrator to prowmnc.?, an award, he will wdy get a 
Atwriuff whuw. he, ! ready to defend his own cam f. 1 10. If a man 
who had agreed with Home one now deceased to refer a matter to 
arbitration should mine a claim to the inheritance judicially, then, 
if the arbitrator given hin award, it will prejudge the question of 
inheritance, eonnequently the arbitrator nmnt be prevented from 
proceeding for the prenent 11* The time agreed on for the arbi- 
tration may be enlarged, I do not mean, that iw, when this has to 
be in purnuance of an agreement, but when it it* necessary to get 
the arbitrator H order for the purpone, to prevent the penalty being 
incurred. W. If an arbitrator attempts to conceal himself, the 
Pnctor ought to have a neareh made for him, and if he keeps away 
for a long time, he nhould l>e ordered to pay a fine. IS. Where an 
agreement in made to refer a quoHtion to several arbitrators, on the 
understanding that if * any one nhould pronounce an award, even 
atauding by luwnelf, the partieB nhould abide by it, then, if all 
but one nhould be alment, wtill that one will be bound to give a 
dticiHlott ; but if the Hubminnion wan on the underntanding that all 
were to pronounce, or f that the view of the majority was to prevail, 1 ^* 
the Prartor ought not to put compulsion on the individual arW- 

I Apiwtnwtty Home couftutlou* 
a After M in*. *i Of. M. 

II Text hopolm; tho KtuiHO must be a above. 



TIT. Yin] On arbitrations 289 

trators separately, as no individual arbitrator's view will determine 
the penalty* 14. In a case where an arbitrator seemed clearly 
to be an enemy of one of the parties on independent grounds, 
where moreover he was called upon, on special evidence produced, 
not to pronounce an award, but 1 he nevertheless proceeded to 
pronounce one, though no one pressed him to do so, whereupon a 
complaint was made to the Emperor Antoninus, the note which 
the Emperor made on the party's libel was that he could have an 
ettceptio of dolus malm. The same Emperor being consulted by 
the judge before whom an action was brought for the penalty, his 
answer was that although no appeal could be brought, nevertheless 
the action for the penalty could be barred by an eocceptio of dolus 
mains. Accordingly that plea gives a remedy which amounts to a 
kind of appeal, as a legal means is furnished of having a rehearing 
after an arbitrator's award. 15. In discussing the duty of an 
arbitrator we must understand that the whole discussion must be 
founded on the particular terms of the submission, as the arbitrator 
cannot legally do anything but what it was provided by the agree- 
ment that he should be able to do ; accordingly he cannot decide 
just as he pleases, nor on whatever question he pleases, but only 
on the question which it was agreed to refer and in conformity with 
the agreement. 16. Questions have been raised as to pronouncing 
the award, and it has been held that it is not simply any award 
which the arbitrator chooses to pronounce that will be valid, though 
on some points there has been a difference of opinion. I should 
say that the award is in fact not binding, if the arbitrator should 
declare that on such a point the parties must go to the court, or 
make a fresh submission, either to him or to some other arbitrator. 
In fact Julianus himself declares that he may be disobeyed with 
impunity, if he orders the parties to go before another arbitrator, 
as otherwise the matter will never end, though if he gives some 
such award as follows, that land must be delivered or security must 
be given, subject to the approval of Publius Msevius, the award must 
be obeyed. The above view is supported by Pedius : [he says 
that] in order to prevent arbitrations being prolonged or transferred 
to other arbitrators, who perhaps are hostile to [one of] the parties, 
the arbitrator ought to frame his award ao as to put an end to the 
dispute ; whereas the dispute is not |wxt an end to where the * 
question is either postponed or transferred to some other arbitrator 
The award, he adds, is partly on the question in what form security 
shall be given and who shall be sureties, and the decision on these 
1 After dicwet read et. M. 

M. J. 19 



290 On arbitrations [BOOK iv 

points cannot be delegated, unless the agreement was to refer to 
the arbitrator the very question on whose arbitration security should 
be given. 17* Again, if the arbitrator should require that someone 
else should be joined with him, where there is no such provision 
in the submission, this is no award ; an award can only be on the 
question referred, but the above was not referred. 18, If two 
principals make mutual stipulation^ and then desire the case to be 
carried on before the arbitrators through their procurators, the 
arbitrator may require the parties themselves to be present as well; 
19. indeed, if the submission expressly names the heir, he can call 
upon their heirs to be present too. 2(1 It is a regular part of the 
duty of the arbitrator to way how clear possession is to be given. 
Docs it comprise the ordering 1 an undertaking to be given that the 
principal will ratify what is done by his procurator * Sextus Pedius 
holdn that it does ; however there is no HCIIHC in this view, because, 
if the principal should not ratify, he will become liable on the 
ntipulation. 21. An arbitrator can do nothing outside the terms 
of the submission, consequently it in necessary to add expressly 
any provision as to enlarging the time ; otherwise his order may 
be disobeyed with impunity. 



33 PAHNJANTS *Qw*tiiHw I) An arbitrator who is chosen in 
punwance, of a Kubminsiori on the understanding that he may 
enlarge the, time in at liberty to do HO ; but he may not advance 
the hearing if the parties object. 

34 PAUUTH fo/e tlw Krfht. Ify If there are two correal creditors 
or debtorn, and one of them refers a question to arbitration, and 
thereupon an award is made ordering that he shall not sue or shall 
not be Hiied, UH the ewe may be, let us consider whether, if the 
other HUCH or IB nuedthe penalty in incurred ; the same question 
arineH in the cane of two banker* who are co-creditors (quorum 
wmiwt MMnl dwwfy The truth IB we might perhaps put them on 
the footing <>f nurctloH, if they are partners ; but, if they are not, 
then there IK no action against you I by your co-debtor] though I 
mu>* [him I, and, though you should be sued [by my co-creditor], 
the action in not on my behalf. L If the penalty is once incurred, 
then I HhouUi way that the true rule to that there is an end of the 
ftubinimion, and the penalty cannot be incurred any more, unless 
the intention WUH that it should be incurred from time to time on 
each separate oecanion. 

1 Afwwr 9<tti* road ut dtiw. Ofc M. 

* Head licet 4ffo pttaw for nee ego p*to. Hal cf. M 



. vm] On arbitrations 291 

35 GAITTS (on the provincial Edict 5) If a boy under age agrees 
to refer a matter without his guardian's concurrence, the arbitrator 
cannot be compelled to pronounce an award, (because, if the award 
should be against the boy, he will not be liable to pay the penalty,) 
unless the boy gave a surety who can be sued for the penalty. 
This is Julianus's opinion too. 

36 ULPIANUS (on the Edict 77). If an arbitrator should, under 
compulsion from the praetor, give an award on a holiday (f&riatis 
diebus), and the penalty should be sued for in pursuance of the 
submission, it is clear that no exceptio is admissible, unless, by 
some 1 statute, the very holiday on which the award was given was 
barred. 

37 CEIOTS (Digest 2) Where an arbitrator has ordered that 
neither party shall sue the other, then, if the heir of either sues 
in spite of the prohibition, he will incur the penalty ; the object 
of going before an arbitrator is not to postpone a dispute but to 
put an end to it altogether. 

38 MODBSTINTJS (Rules 6) When a penalty is sued for in 
pursuance of a submission, the man who incurs the penalty will 
have an order made upon him to pay it, and it is of no consequence 
whether the other party had an interest in the award being com- 
plied with or not. 

39 JAVOLBNUS (extracts from Oassius 11) It is not every case 
of disobedience to the award of an arbitrator which causes the 
penalty to become recoverable in pursuance of the agreement 
between the parties, but only those cases in which the question 
at issue turned on the payment of money or the performance of 
some service. The same : An arbitrator can punish contumacy in 
a party to the arbitration by ordering him to pay a sum of money 
to his opponent ; but a man is not to be reckoned contumacious 
because he did not set out the names of his witnesses to the 
satisfaction of the arbitrator. 1. Where an arbitrator orders 
the time agreed upon to be enlarged, in a case in which he was 
authorized to do so, the default of either party will afford ground 
for the penalty being demandable by the other. 

40 POMPOJNTXTS (extracts from various passages 11) An arbitrator 
ordered the parties to attend on the first day of January, and died 
before that day ; when the day came one of the parties failed 
to attend. In this case, beyond all doubt, the penalty was not 

r Bead aliqua for alia. Pothier, c M. 

193 



292 On arbitrations 

incxirred ; indeed Arinto tells* uw he once heard Cassius say that no 
penalty wa incurred in the case of an arbitrator himself failing to 
come to hold the arbitration. The above is in keeping with what 
is Htiid by Servian, viss. that if it is the fault of the promisee that he 
fails to receive the money promised, the penalty is not incurred. 

41 OALLISTKATUS (vttwitorj/ Etlirt 1) As it is provided by the 
hw Jttl! that no one under twenty is to be compelled to be a 
judge, it is held that no one can be allowed to choose one under 
that age as judge in an arbitration , consequently no penalty can 
be incurred 'throu&h an award given by such a person. At the 
same time it has often been said that if a mun who in over twenty 
but under twenty-live should without due reflection undertake to 
hear un arbitration ease, under the circumstances relief would be 
given. 

42 PA 1*1 N I ANUH iltcniMwm ii; An arbitrator ordered that certain 
slaves should be handed over by a given day, and, as they were not 
so handed over, adjudged the party to pay so much to thejtfmwby 
way of penalty, in' accordance with the, terms of the submission. 
Bv this award" no righto arc acquired by the,/?**, but nevertheless 
the penalty promised win be demanded, beeause the party failed to 
do what was ordered by the arbitrator. 

43 He VFVOLA < /toy www 1 j A reference to arbitration was agreed 
upon of "all matters and disputes, 1 ' by Lucius Titius and MiovhiB 
Kempronius. Thereupon, by mistake, IW.IUH Titius omitted in his 
application some partieular matters, and nothing was said about 
them i the arbitrator's award. The question arose whether a 
frehl) application amid be made as to the matters HO omitted The 
answer was that it could, and that no penalty was incurred in 
pui-KiiuiKsti of tho submission ; but that if the party made the 
omission with malicious intent, then, though he could no doubt 
Htill apply, he would have to submit to the penalty. 

44 TUB "HAWK >/%'* S A dispute arose on a question of 
twwndaries between < 'astelliamiH and SehiH, and an arbitrator was 
chosen hi order that tho question might bo net at rest by his 
decision ; who accordingly gave his award in the presence ot the 
mirticH and laid down tho boundaries. The <iueHtion wan asked 
whether, on failure to observe the award on the side of Oastelhaims, 
the infinity wan mmrml in purKiianco of tho Hubminmon, I 
fwwra that if tho urMtmtor wan not obeyed in ronpect of an 
award which he made lit the prince of both partien, the penalty 



TW. vm] 



On arbitrations 293 



46 ULPIANTTS (on Sabmus 28) In arbitration cases, where part 
of the agreement is that the decision shall be made by a particular 
person, the right of decision is confined to that person. 

46 PAULUS (on Sabmus 12) An arbitrator can decide as to 
matters, accounts, and disputes which were pending between the 
parties to the arbitration at the time, not such as occurred after 
the reference. 

47 JULIANUS (Digest 4) If an agreement to refer is made in 
such terms that the arbitrator is to pronounce his award in the 
presence of both parties or of their respective heirs, and one of the 
litigating parties dies leaving for heir a boy under age, no award 
given is held to be valid, unless the guardian has given his con- 
currence. 1. Similarly, if one of the parties to the agreement 
becomes insane, 

48 MODESTINUS (Rules 4) the arbitrator will not be compelled 
to give an award : 

49 JTJLIANUS (Digest 4) indeed, he may be ordered not to give 
one, as it is held that there is no such thing as an act done in the 
"presence " of a lunatic. If however the lunatic has a curator or 
comes to have one while the case is still pending, the award can be 
pronounced in the presence of the cwrator. 1. An arbitrator can 
summon the parties to attend either by a messenger or by letter. 
2. If mention is made of the heir in connexion with one of the 
parties only, the arbitration will be annulled by the death of either 
of the parties, just as it would be if there had been no reference 
to the heir of either. 

50 ALTENUS (Digest 7) An arbitrator who was had in pursuance 
of a submission, not being able to give his award by the day which 
was laid down in the reference, ordered the time to be enlarged ; 
but one of the contending parties refused to observe the order j 
whereupon an opinion was sought on the question whether he 
could be sued for the penal sum in pursuance of the submission. 
I answered that he could not, because the arbitrator had not been 
authorized to make such an order. 

51 MABIANUS (Rules 2) If a man is appointed arbitrator in his 
own affair, he cannot pronounce an award, as he would be ordering 
himself to do something or forbidding himself to bring some action 
and nobody can issue a command or a prohibition to himself. 

52 THE SAME (Rides 4) If a man who is ordered by an arbi 
* trator in pursuance of a submission to pay a sum of money shouk 



204 On arbitrations [BOOK<IV 

make default in doing so, he is bound to pay the penalty in 
accordance with the agreement, but, if he afterwards pays the 
money, he is discharged from the penalty. 



IX. 

SKAMMN, INNKEKPKKS, KTAULEKEEPERS, TO RESTORE WHAT THEY 

KEOKIVE. 

HLPJANUH (on the JSdift 14) The praetor says: "Where 
Hearnen, innkeepers, or Htablekeepen* have received the property 
of anyone on the ternut of wife custody, then, unless they restore 
it, I will allow an action against them.' 1 L This Edict is highly 
beneficial, *IH it in very often nccoHnary to rely on the engagements 
of the portion** mentioned and to commit things to their custody. 
And no one need think Unit the above Edict bears hardly on 
them, UK it is open to them, if they like, to refuse to receive 
anyone, and, unlcHH thin rule were laid down, they would have 
it in their powur to connpire with thieven against the persons 
they took in ; in fact, even an it in, they arc not always innocent of 
dinhonoKt machinatioiiH of thin kind. "2. Let UB consider then, 
firmt of all, who the powwH are that are held liable. The prsotor 
UHCB the word " neamcn " (wvHtw). By seaman we must understand 
a pernon who IKJIH the management of the ship, though, as a matter 
of fact, anybody in called a seaman who IB on board the ship to 
aid in the navigation ; however, the prartor IK only thinking of the 
esnewftw (owner or charterer). It in clear, Pomponius says, that 
the rwrdtw ought not to IK* Ixmncl by the act of some oarsman 
or man before the iwint, but only by hit* own act or that of the 
wanter ; though, no doubt, if ho hmmelf told anyone to commit 
{something to the care of one of the nailorw, he must himself be 
liable. & There are particular officers on board vessels who 
exemne authority in the ship with a view to the proper custody 
of goods, Huch JIH the wMphykwi fahip'H gtiard) and the dioBtarius 
(Btewardj ; HO if one of thene receives anything, I should say there 
ought to Iwi an a<Jtiou allowed againnt the wervitor, because a man 
who given the above* office the conduct of any such department 
w described authorise** thingn being committed to their change, 
though it IK the owner (m^i^dariutf) or the master who does what 
in called the cfaimnbokm (taking charge)* JBven if he does not do 



. ix] Seamen, innkeepers etc. 295 

this, still the owner will be liable for what is received. 4. As for 
those who ply rafts, or wherrymen, there is no provision in the 
Edict about them, but, according to Labeo, there ought to be 
the same rule, and such is the present practice. 5. Under the 
description of innkeepers and stablekeepers are to be understood 
not only those who carry on those respective businesses, but their 
agents as well But those who discharge the duties of a common 
drudge are not included ; for instance, doorkeepers, kitchenboys 
and the like. 6. The prsetor says, " where they have received any 
one's property on the terms of safe custody"; this means where 
they receive any object or ware. Hence it is stated in Vivianus 
that the Edict deals equally with things which are over and above 
the actual cargo, such as clothes which passengers wear on board 
ship, and such things in general as people require for everyday use* 
7. Pomponius says (b. 34) that it is a matter of small account 
^whether the goods which people bring in are their own or those 
of other persons, so long as those who bring them have an interest 
in their being preserved, as the articles in question will have to be 
given up to such people rather than to their owners. Accordingly 
if goods were held by me as security for money lent on a sea-risk 
(pectmia nautica), the " seaman " will be responsible to me and 
not to the debtor, if he received the goods from me 1 . 8. Does the 
party receive goods on terms of safe custody only where, besides 
being put on board, they are expressly entrusted to him ; or, if 
they are not so entrusted, is he still held to receive on the above 
terms by the bare fact that they are put on board ? I hold that he 
undertakes the custody in all cases where anything is put on board, 
and that he is bound to answer for the acts not only of seamen but 
even of passengers ; 

2 GAIUS (on the provincial Edict 5) just as an innkeeper is 
bound to answer for the acts of travellers ; 

3 ULPIANXJS (on the Edict 14) and with regard to the acts of 
passengers, the same thing is set down by Pomponius too (b. 34). 
According to this writer, even if the goods have wot yet been taken 
on board, but have been lost ou land, still, if they ai*e goods which 
the eer<yitor has once engaged to carry, the loss falls on him. 
1. The prsetor says, " Unless they restore it, I will allow an action 
against them." The action founded on this Edict is in faetum. 
However we may fairly ask whether this action is necessary, as the 
case is one which would afford ground for a civil action ; namely, 

1 For ante read a me. Hal cf. M. 



296 Seamen, innkeepers etc. [BOOK #/ 

if there was a pecuniary consideration given, the action esc locato 
or <>x conducto ; that is to way, if the whole ship was hired out, the 
party who chartered her can bring an action ex conducto even for 
the goods that arc missing, but, if the " seaman " engaged to carry 
the goods, he can be sued ex forato ; lastly, if the goods were taken 
on board for nothing, then, says PomponiuH, there is a good action 
on tteiMMittiM. Thin writer, therefore, is surprised at there being 
an honorary action introduced, as there are civil actions available 
unless indeed, he nays, the object was to let it become known that 
the pnutor took express care to check the dishonesty of persons 
such aw those mentioned ; and also because in cases of locatio and 
wnulurth a man answers for negligence, in depositum for dolus 
only, but under this Edict the party who took in the goods is 
bound absolutely, even when* the goods are lost or mischief happens 
through no fault of law, unless what ensues is a case of unavoidable 
mischief. Accordingly Labco says that if anything is lost through. 
shipwreck or through an attack by pirates, the ewertitor may 
reasonably be allowed an MM/rtfo. The same must be said where 
a case of w winjur happens in a stable or an inn. 2. Innkeepers 
and stublekeepers are liable, so far as it IH in the exercise of their 
calling that they take the goods in ; but if they do so in some way 
which in not connected with their business they are not liable. 
& If 'AjHiutiJitttiUittti or a slave takes in the goods, and the consent 
of the father or 1 owner is given, the latter may bo sued on the 
whole liability. Attain, if a slave of the ejtwrGitwr stole the property 
or did damage, there will be no noxal action, because, the goods 
having been taken in, the owner (of the slave] can thereupon be 
sued in u direct action. If however the above-mentioned persons 
act without the consent (of the father or owner], there will be an 
action //rt ;w//V>, 4, This action, Pomponius says, is to indemnify 
the plaintiff ?m' pcrwvHtitnu'm coitfirMt) 9 &nil consequently it will 
be allowed ugaiiiHt the heir and without limitation of time. 5, We 
may lastly ask whether proceedings by way of an honorary action 
for goodw received and by way of action for theft can be taken in 
rw|Kicti of the name thing* AH to thin, Pomponius is in doubt ; but 
I should nay on the whole that the party ought to t>e confined to 
one or other of the two, either on motion or by an a&Mptio doll 



4 PAULUH (on the Kdfot K*J On the other hand the seaman 
himself at whoso risk the goods are hat* a good action for theft, 
cither he wtolo them himself, and after that they were stolen 

* After patri* im aut. M, 



X' 



'. ix] Seamen, innkeepers etc. 297 

from him, or someone else stole them, but the seaman is not in a 
solvent condition. 1. If a seaman receives [the goods] of a seaman, 
a stablekeeper those of a stablekeeper, or an innkeeper those of an 
innkeeper, he will still be liable. 2. Vivianus declared that the Edict 
applies as much to such things as are brought in after the cargo is 
placed on board and the contract to carry it is made, though no 
freight should be payable for them, such as articles of clothing, or 
food to be consumed on board, as these things are comprised as 
accessories in the general contract. 

6 GAIUS (on the provincial Edict 5) Seamen, innkeepers, and 
stablekeepers receive pay not for taking care of the goods, but, in 
the case of the seaman, for conveying passengers to their destination, 
in that of the innkeeper, for letting travellers stay in the inn, and 
in that of the stablekeeper, for allowing horses to be put in his 
stables ; still they are responsible for custody. Fullers and cobblers 
do not receive pay for custody, but for their handiwork, nevertheless 
they are liable to an action ex locate for the custody. 1. What 
has been said about theft must be understood to apply equally 
to damage ; as there can be no doubt that a man who receives 
property on terms of safe custody must be held to engage to protect 
it not only from theft but from damage. 

6 PAULUS (on the Edict 22) Though you should be carried 
in a ship or make use of an inn without charge, still an action 
infactum on your part will not be disallowed if your property is 
unlawfully damaged. 1. If you make use of my slave in your ship 
or inn, and he damages my property or commits a theft thereof, 
then, although it is true that [generally] actions for theft and 
damnum inywria [on my slave's part] would have to be brought 
against me, still, in this case, the action, being in faetum, is avail- 
able against you, even in respect of my own slave's behaviour. 
The rule is the same if he belongs to both of us in common ; but 
whatever you pay me on account of the slave's act, whether your 
liability was established in an action communi dividwndo, or pro 
sodo 9 or in an action founded on the fact that you hired a share in 
the slave, or hired the whole man, you will have a good demand on 
me on the contract of hiring too. 2* But if I am damnified by 
some injury done to the slave himself by a third person who is on 
board the same vessel or in the same inn, and whose acts the 
prsetor is in the practice of taking into account, Pomponius is of 
opinion that this action will not be available on the slave's 
account 3. An innkeeper is liable to the action in 



298 Seamen, innkeepers etc. [BOOK yt 

on the ground of tin* behaviour of persona who are in the inn 
us lodgern, but this does not apply to one who is admitted by 
way of casual entertainment, such as a traveller. 4. A man may 
very well have recourse to an action for theft or unlawful mischief 
agaiuHt seamen themselves if, that w t lie can prove the ill-behaviour 
of any particular person ; but he is bound to confine himself to 
one action ; anil if he proceed* against the ctwrdtor, he ought to 
axhiirii to him his right of action [against the actual delinquent], 
though indeed the wrrttor would have a right to sue such 
delinquent in an notion tw wHrfwiv. If however the esce^citor is 
dismissed from the action, and then the party proceeds against the 
Hwiman, the latter will be allowed an ejrtyttw, HO aw to avoid 
repented trials being had on the ground of the behaviour of the 
ttamc man: and, oonvernely, if proceeding** are taken and carried 
through founded on the behaviour of one particular man, and then 
the action ht/wtHM IK brought | against the mercitor\ t an etvceptio 
in allowed* 



w* the Ktlfct IB} The cMrcitor is bound to 
annwcr for the behaviour of all (tin Heamcn, whether they are slaves 
or free ; and H IH quite reuHonable that he Hhould bo answerable 
for their ttclmviour, a* he, hitiiKotf employed them at his own risk. 
Hut he in only utwwemble where, the damage in committed on 
board the nhip ; if it happetiH off the nlup, even by the act of the 
Hcumcii, lt in not n'HponKiblc. Montovcr if he given notice before- 
hand that all the paHHengern are to look after their own goods, 
and that he will not IK: ariHweruble for damage or loss, and the 
paHxengerH agree to the termn of thin notice, then he cannot be 
mied* K The action hi fftrtmn rttfcrred to in for double damages. 
2. If the Htiuniwi Hhould do any <htmage to one another's property, 
thin doe* not concern the ttrw/tor. But where a man is both 
awl mer<*lutnt lus will have a good claim ; and whore the 
fiUln on one of thoHC c,alltjd MtmtrjMJlHttM CpernonK who work out 
their iHuwaifu,', tho iwrritMr in liable to him too ; but he is also 
bound to atwwtir for the win of wuch perwmH, HIIICC they arc seamen 
m woll |'HH puHmmgerH|. II If the minehief in done by the slave of 
a Htiftimui, though Kiich nlave in not a weaman himself, it will be 
perfectly junt to allow an itii/i* ttctfa againnt tho ewercitor. 4* In 
tht action tho /osf r/tor IH liable diroctly, that in, in respect of his 
own fimlt for employing mich mm ; coiiniHiuently oven if the men 
UieuimdveH Hhould die, tin* will not reload hinu Where however 
this uction i founded on iwstK of the wswitw** own slaves, it can 



i. ix] Seamen, innkeepers etc. 299 

only be a noxal action, to bind the exercitor ; no doubt, where he 
employs slaves belonging to someone else, he is bound to make fall 
inquiry as to how far they can be trusted, and are men of good 
character ; but in respect of his own slaves he may feirly be 
excused, whatever kind of slaves it is that he got to equip his 
vessel. 5. If there are several exercitors to the same ship, each 
may be sued in respect of his own share in the business of exercitor + 
6. The actions under discussion are praetorian, nevertheless the 
right to sue is subject to no limitation in respect of time ; on the 
other hand they are not allowed against the heir. We may add 
that if a slave was ex&rcitor, and he is dead, no action de peaulio 
will be allowed against his owner, even within the year ; but where 
a slave or a son has the control of a ship or an inn or a stable, 
with the consent of the owner or father, there, I should say, the 
latter himself will have to defend the action for the whole damage, 
on the implied assumption that he undertook the full responsibility 
for all contingencies. 



FIFTH BOOK, 



ON TJUAIjK AT LAW: AS TO WHBKK A MAN OUGHT TO TAKE 
1110(!KK!>INC!H OH HB SUJKl). 

Uu'iANPS 'Oft ////' KtfM 4 Jj If personn .submit their case to 
Home particular tribunal, upon agreement HO to do, thereupon, as 
Ix'tween the parties Mugreeing, jurisdiction belongs to any judge 
who prexiden in fhe eotirt, or has other authority therein, 

TIIK SAM I 1 ! **u thr Kilt ft X Parties are held to agree who 
know that Ihn air not nubjeet to the jurisdiction of the judge in 
f|uwtion, Imt do in fact agree to report to bin court ; but if they 
wereK nuppoM* that fit*' jurisdiction belongH to that judge, it will 
not on that utrount Iwlong tx> him ; wluw the litigating parties 
make a nustnko, an JulianuH hiiiwclf Hays (/%. 1), there is no 
utfrrrwmt. Or, if thi*> took for pnetor one who wan not prsotor, 
tln*n afoilw the agnwtiiunt, KO uuuht in crror conferH no juriadictiou. 
Again, if one of the itartiuH n*fuhen tx> concur, but in compelled 
thereto by the pnrtor b) tlu* fore<t at hw command, no jurisdiction is 
oonfi^TiMt 1. In re*]K<et of agnem<^ntH, in an arrangement between 
private pi?roiiH enough, or in the conwsnt of the pnutor himself 
ri^iuir<d an well The wordn of the /<vr Julia on trialn-airlaw are 
**HD an to prevent private pei^onn ugreeing"; HO that an agreement 
twtwwn privuto IHTMOIIH in enough- If then the private persons 
iiKWN but the prn4or in not aware of their agreement, and thinks 
the jurisdiction in bin own, we may fairly eonmder whether the 
eowlitionw required by the statute, are not fulfilled ; and I ahould 
nay that it may be very well maintained that the jurisdiction 
iKtltmgH to the |*wii agrt^ed upoiu it. If a man in nominated aa 
judge, atid in to hold the oiUw for u given time, and all the litigatmg 
agreo to an enlargement of the time within which he is to 



'. i] On trials at law 301 



be bound to decide the case, the enlargement may take effect, 
unless this is expressly barred by Imperial order. 3. Legates are 
allowed the right of having the case transferred to the court of 
their domicile, where the question turns upon any contract which 
they made before they became legates, and a similar right is given 
to persons who have been required to attend to give evidence or 
have been sent for or ordered to go to a province to act as judges. 
The fact 1 that a man has appealed against a judgment does not 
put him under the necessity of defending proceedings taken by 
other persons during the time occupied by the prosecution of his 
appeal at Rome or in any other place at which it is being carried 
on ; Celsus says that under these circumstances a man may in fact 
ask to have the case transferred to his own domicile 2 , because 
he only came to Rome on other business. This opinion is held by 
Celsus and it is perfectly sound ; the Divine Pius himself laid down, 
in a rescript addressed to Plotius Celsianus, that a man whom he 
had cited to appear at Rome to give an account of a guardianship 
ought not to be compelled to appear in respect of a different 
guardianship in connexion with which he had not been cited. The 
same Emperor, in a rescript to Claudius Flavianus, laid down that 
a youth under twenty-five who had asked for a restitution in 
mtegrum against one Asinianus, who had come to Rome on some 
other business, had no right to have his application heard at Rome. 
4. All the above-mentioned persons have the cause transferred to 
their own home on the supposition that they did not enter into the 
contract in the place where they are sued ; but if they did enter 
into the contract there, they have no right to have the cause 
transferred ; except legates, wbi> are not compelled to defend their 
case in Rome as long as they remain there in the character of 
legates, even if it was there that they made the contract, provided 
they made it before the time of their discharging the office of 
legate. This we are told by Julianus, and a rescript of the Divine 
Pius lays down the same rule. No doubt if they continue to reside 
at Rome after the duties attached to the character of legate are 
discharged, then, according to a rescript of, the Divine Pius, they 
can be sued there* 5. If they made the contract outside their 
own province, but not in Italy, it is a matter of question whether 
they can be sued in Rome. Marcellus says they can only use the 
privilege of having a matter transferred to their domicile when it 
depends on a contract made by them in their own city, or at any 



1 For gttogtt* qui read quod quit. M. 

2 For ckmnt perfiapd react domum. 



302 On trials at law [BOOK/ 

rate within their own province, and this is true. However 1 , on the 
other hand, if they bring an action themselves, they must defend 
any action brought aguinHt them ; but I do not mean to say that 
this IB BO where they simply sue on someirywna or theft or damage 
which they suffered where they are ; or else, as Julianus nicely 
observes, cither they will have to bear insults and loss without 
getting redrew or else it will be in anybody's power, by attacking 
them, to make them subject to [ Roman] jurisdiction the moment 
they seek redress. 0. If there is any doubt whether a man is 
or is not in such a position that he can have a matter transferred 
to his home tribunal, it is for the prsetor to determine the 
question, on inquiry into the case ; and if it should be clear that 
he can under the circumstances have it HO transferred, the party 
will be bound to undertake to appear at the trial, the prsetor 
laying down to what day his engagement shall refer. As to 
whether he is simply to enter into an undertaking or find security, 
Marcolltis is in doubt ; my own opinion is that he need only give a 
formal promise, and Mela says the same thing ; and, were it other- 
wise, the case would be not so much that he had to find persons to 
l>e security for him us that he wan compelled to meet the action 
where he WJIH. 7 Hut in all canes in which the time for appearance 
is extended, it ought to bo done so as not to allow lapse of time 
to occasion loss to creditors & The right of inflicting a fine is 
allowed to wmh as exercise judicial functions by governmental 
appointment, and to no others ; save in pursuance of express 
authorisation, 

3 THK BAiwrc frm tfw K<1wt -1) A man cannot be held to be 
keeping out of the way to avoid an action, if, even when present, he 
IH not compilable to meet the action, 

4 UAIUK ion tlw /JMWwvV/f Kilwt I) A man cannot have any 
aetioiHit-luw against a person whom he has in his own potestas, 
nave iu n*Hpect of nwfW'HjW /ww/7w.wi. 

5 HUMAN UH (M* ttu* Kilict f>) Where a man in cited out of the 
jurisdiction of Home other Magintrato to appear in the praetor's 
court, he IH bound to attend, HO both I'omponiuH and Vindius 
inform UH ; becauwe it in for the pnutor to form a judgment as 
to whether he iiax jurisdiction in the cane, and not for the party 
cited to treat the" authority of the pnotor with contempt : as 
even legato** awl all thoNo generally who have a right to hare 
a cane removed to their domicile ure in this position that, if 

1 Polo *t M. 



. 



'. i] On trials at law 303 

they are cited, they must appear, and then they can assert their 
privilege. 

6 THE SAME (on the Edict 6) A blind man is competent to 
discharge the office of judge. 

7 THE SAME (on the Edict 7) If a man, after he has once been 
cited, becomes a soldier, or comes to have a different forum, he will 
not have a right to have the case removed to his forum, as the 
plaintiff, you may say, is beforehand with him. 

8 GAITJS (on the provincial Edict 2) If a man in the course of 
a legation makes a constitutum of money which he owed before he 
was legate, he cannot be compelled to meet an action in the place 
where he made the constitutwm. 

9 ULPIABTUS (on the Edict 9) The Italian islands are a part of 
Italy, and [the islands in the vicinity] of any province [are a part 
of that province]. 

10 THE SAME (on the Edict 10; A man is held to "desist" not 
where he postpones a trial at law, but where he abandons it 
altogether ; to desist is to give up with a vexatious object pro- 
ceedings which a man had set on foot. There is no doubt that if a 
man, on ascertaining the real facts of the case, relinquishes some 
proceeding because he is unwilling to persevere in an unjust 
contest, not having begun it originally with a vexatious object, 
he is not held to desist. 

11 THE SAME (on the Edict 12) If I arrogate a man after he 
has joined issue with me in an action which he brought against me 
or 1 brought against him, then, according to what Marcellus tells 
us (Dig. 3), the action is at an end, because there could have been 
no action between us at the outset [if we had been in our present 
position]. 

12 PATJLUS (on the Edict 17) Where the praetor forbids one out 
of a number to act as judge, he may be held to authorize the 
others. 1. Those officers can appoint a judge to whom the power 
of doing so is given by a statute or an Imperial enactment or a 
decree of the senate* By a statute, for instance, this power may 
be given to a proconsul. Moreover one to whom jurisdiction is 
delegated can appoint a judge ; in this position are proconsular 
legates. We may add those to whom the right has been alloftsct 
by custom, because of their general power of command (impemw), 
for instance the prce/ectus wfbi aud the other magistrates at Rome. 



If 

304 On trials at law [BOOK<4 

2. Officers who have the power of appointing a judge are not at 
liberty to give any judge they please ; some kinds of persons are 
incapacitated from being judges by statute, some by nature, some 
by custom. By nature deaf and dumb persons are incapable, also 
incurable lunatics and boys under age, as they are devoid of 
judgment By statute a man is incapacitated who has been re- 
moved from the nenate. By custom, women and slaves, not because 
they arc wanting in judgment but because it is an established rule 
that they are not to discharge civil oifices. & As to those who are 
legally capable of holding the office of judge, it is immaterial 
whether they arc under iMfaAtiw or #ui juris. 



13 < ! A r us (ou t/t<> j>wriHfiint Kdht, 7) In the three actions called 
fumlHw mvV/fw/ff, eunmnm dirirfwido, and c /5wmw regwidorum 

it is a question who is to be, regarded us plaintiff, seeing that [in 
each of those cases | all parties appear to be in the like position. 
However it is hold on the whole that the party to be regarded 
an pluintifl* is the one who brought the matter before the court; 

14 UwiANl'H tHiHjMfnffotiA *Jj but where both parties bring 
the. waiter before, the court, the practice is to determine the 
question by lot. 

15 THK KAMK .on the Kdict iil) If a filhwfamiluw, being a 
judge, hhould "make the ease his own/ 1 lie is liable to pay an 
amount equal to the value of what there wan in his peeulium at 
the time of his pronouncing judgment. L A judge is said to 
"make the cane his own 71 when he maliciouHly pronounces judg- 
ment in fraud of a statute ; and he is held to pronounce maliciously 
when plain proof is given of favour or spite or, it may be, some 
corrupt motive on his part The result is that he is compelled 
to hand over the true value of the matter at stake, 

16 THK HAMK (<>u t/w /iW/W r*) Julianus holds that where a 
judge hii* mude the case his own, there will be a good right of 
notion agaiunt his heir ; but this opinion is not correct, and many 
have criticised it. 

17 TH H4M K < MI tJt* 1 AW/V/ ihi; *J uliauus says that if one of the 
parlies mak(M the judge heir either to the whole or a part of his 
wtate, Home otlmr judge must needs be had, because it ia unjust 
that a man should be made the judge of hiw own ease. 

18 THM HAMK (<w the Kdirf sKf) If a considerable interval of 
time will have to paws Iwfim* tlio judge appointed can attend to the 



On trials at law 305 

matter, the Preetor orders another appointment; this occurs, for 
instance, where he is engrossed by something or other which does 
not allow him to bestow his attention on the trial, he may have 
an attack of illness or be obliged to go on a journey, or his private 
property may be exposed to dangers. 1. If &fMwfmdlia8 wishes 
to take proceedings on the ground of some injury as to which his 
father has a good right of action, he is only allowed to bring an 
action where there is no one to bring it on behalf of the father. 
Julianus himself holds that if a filiusfarmiias is away from home 
on a legation or with a view to study, and some act of theft or 
wrongful damage to property is committed against him, he can 
proceed by way of utilis aetio, as, if he waited for his father to 
sue, the wrongs done might go unpunished, because either the 
father never meant to come to the place at all, or else, before he 
arrived, the party who committed the offence took himself oft 
Accordingly, the rule which I have always approved of is that 
where the matter does not depend on delict but on contract, then, 
if the father happens to be somewhere in the provinces and the 
son himself is staying at Rome, either for the sake of study or for 
some other good reason, the son ought to proceed by way of utiKs 
wtio ; let us suppose that he seeks to recover a deposit or sues on 
mandatum or for money which he lent ; and the reason for this 
is that, if he is not allowed the action, the result may be that he 
will be victimized with impunity and be living at Rome in a state 
of destitution because he does not get the allowance which his 
father intended him to have for his expenses. Suppose ihzfiUus- 
familias is a senator and his father is in the provinces ; would not 
the fact of his rank enhance the equity of the case ? 

19 THE SAME (on the Edict 60) An action against an heir who 
is away from home ought to be defended at the place at which the 
deceased was liable, and the heir can be sued there if he can be 
found on the spot, and is not protected by any special ground of 
exemption personal to himself. 1. If a man has been carrying on. 
a guardianship or a curatorship or has been engaged in business, 
or banking, or anything which has made him incur some 
obligatioB, in any particular place, he must be ready to defend 
actions in the same place, though he had no home there, and if he 
will not defend actions, and has no home there, he must submit to 
possession being taken of his property. 2. Similarly, if he sold 
goods in any particular place, or dealt with them in any way, or 
bought goqds, it is held that he must 1 sustain actions at the same 

1 After defenders ins. dtbere. Of. M. 
M.J. 20 



306 On trials at law [BOOK/V 

place, unless it was agreed that he should do so somewhere else. 
Is the rule 1 then this, that a man who has bought from a merchant 
who is a stranger, or sold to some one whom he knew to be on the 
point of leaving the place ? has no right to an order for possession 2 
of the other party's goods ou the spot [if the occasion arises], but 
must go to the party's place of abode, while if a man [buys] from 
one who has a shop or a place of business which lie hired in some 
particular locality, then the [latter '] position is such that he ought 
to be sued there 3 ? This is on the whole the most reasonable rule- 
in fact, where a dealer comes to a place with the intention of 
speedily leaving it, you can only buy' 1 from such a person as if he 
wore a mere traveller, Home one, that is, who is on his way by land 
or sea to Borne other destination, and-"' it would be a very oppressive 
rule that whatever place a man came to in the courne of a voyage 
or a land-journey he should [bo compellable to] defend an action 
at every spot But if he stop* anywhere, I do not say as though 
the place wore his legal home, but because lie has hired some 
small shop or stall or warehouse or box or office at the place, and 
Rclte goods there or curries on business, then ho will be bound to 
defend actions at the respective places. 3. Labeo mentions the 
following point : Where a provincial trader haw a slave stationed 
at Koine as a factor to sell goods, any contract made with the slave 
is to be treated as if it were made with his owner ; accordingly 
the trader must defend actions at Rome. 4. One point which we 
must bear in mind is this : where a man's obligation is such that 
he is bound to pay in Italy, then, if lie has his domicile in a pro- 
vince, he can be sued both here and there alike ; this is held by 
Julianuti and by many others. 

20 PAULUH (on ffw Edict 5j The correct view is that every 
kind of obligation is to be treated like [one founded on] contract, 
so that, wherever a man incurs an obligation, it is to be held that 
a contract was made there, though it should not be a case of a 
debt founded on a loan. 

21 ULPUNUS (on ilw TSdwt 70) If I desire to exhibit my 
demand to my debtor \edere aetioncm] a good rule is that if he 
admits that he owes the money and declarer that he is prepared to 

1 Perhaps read igltur for dicimut. Of, M. 

* Bead ptMidwfi for pomdvri Of. M. 

* Sense clear, exact words lont I have put tho mark of interrogation after 
. conveniatur instead of after s^ui tjwt. 

4 For wftpti* read *mi*. Of, M* 

* For emit road ^ Of, M. 



On trials at law 307 

pay it, the statement must be accepted, and he must be ordered to 
pay the money by a given day, giving the proper undertaking in 
the meantime : there is no great mischief in delay being made for 
a short while. The expression "a short while" must be understood 
to apply to so much time as has been allowed defendants for pay- 
ment after an order is made upon them. 

22 PAULUS (on Plautius 3) Where a man is not compellable 
to sustain an action at some particular place, then, if he brings an 
action there himself, he can be compelled to defend actions too, 
and to appear before the same judge. 

23 THE SAME (on Plautms 7) A matter which arises after 
joinder of issue cannot be held to be before the Court ; so that a 
fresh application will have to be made. 

24 THE SAME (on Plautiw 17) No right of action exists at 
Rome against persons who are summoned to the city by the 
Emperor, except where they enter into a contract during their 
stay. 1. Legates are compellable to submit to actions in Home in 
respect of delicts committed during the time of their legation, 
whether such delicts are committed by themselves or by their 
slaves. 2. Buf if an action in rem is applied for against a legate, 
ought it to be allowed, this action being founded on the fact of 
present possession ? Cassius laid down that the proper rule is that 
if the action might result in the legate being deprived of his whole 
suite of attendant slaves, it ought not to be allowed, but if it 
relates to one slave out of a large number, it is not to be refused. 
Julianus says, without distinction, that no action can be allowed ; 
which is quite right, as the object of disallowing the action is to 
prevent the legate from being called away from the duties of the 
post which he has undertaken. 

25 JULIANUS (Digest 1) If a man while serving on a legation 
should purchase or in any way whatever come to possess a 
slave or any other piece of property, he is compellable, and that 
very justly, to submit to an action in respect of such property [on 
the spot] ; otherwise it will be put i6 the power of a legate, in 
virtue of his office, to carry off other people's goods to Ms own 
place of abode. 

26 PAULUS (on Plautiw 17) In the case of a legate entering 
on an inheritance, we are told by Cassius that even where he entei$ 
on it at Borne, there is no right of action against him ; because It 
might embarrass him in the discharge of the duties of his legation; 

202 




308 On trials at law 

and this is quite sound. Tic cannot even be sued by a legatee at 
the same time, a legatee can get an order for possession of 'the 
property, unless the legate gives security ; and the same rule 
applies to creditors on the estate. 

17 JULIANXJS (Diyt'st I) What indeed is there to prevent the 
legate continuing to discharge his official duties and there being 
some agent in the meantime in possession of the estate in order to 
take care of it ? 

58 PAULUH '<w Plant ius 17; Again, if an inheritance is handed 
over to him under the Trebeilian statute, no action against him 
will be allowed, whether the heir entered on the inheritance of his 
own free will or under compulsion ; the most convenient course 
will be, no doubt, that the inheritance should be handed over to 
the legate ; still matters ought to be put on the same footing as if 
he had entered on the inheritance himself. 1. Where, to take the 
converse case, the legate himself, during his legation, enters on an 
inheritance and bunds it over, an action will be allowed against the 
fiil<',iroM,miwi,r{/ ; mid no cw/tfio under the Trebellian statute is 
admksiblo founded on the position of the legate, as what has just 
been mentioned is a direct relief to the legate himself. 2. But in 
those cases in which a legate is not compellable to sustain an 
action, he in equally little eompellable to Bwear that he is not 
liable to pay, JIH the oath takes the place of joinder of issue. 
3. A legate in bound to give the regular engagement as to ddmvwm 
ittfcfittttti in respect of u house, or else submit to the neighbour 
taking possession* 4. If the time for bringing an action against 
the legate in on the point of expiring, the Pricier is bound, on due 
cause shown, to allow the action to be brought, so that issue may 
bo joined, and the atne may be removed into the provincial Court 
5. If a patcrfamiJitw dies leaving one son, and his widow is preg- 
nant, the HOU cannot legally demand from the debtors half the 
money lent ( by the deceased, nor will sueh a demand bo legalized] 
though eventually one son should be born, because where in the 
nature of thiugH we might count upon one child being born, the 
number might be greater 1 * However, Kabinuti and Oassius hold 
that what ho ought to have atiked for in a quarter, because it was 
not certain that there would not be three born, and -we need not 
coiiaidor the nature of thingH, according to which nothing is unde- 
termined, eeing that whatever in going to take place does come to 
in any caHo ; what hoa to be conmdered is our own ignorance. 

1 Wording apparently hopeloBS : of. M. 



f- 1] On trials at law 309 

29 THE SAME (on Plautius 8) The party who first applies is 
Plaintiff. 

30 MABCELLUS (Digest 1) Wherever the trial is once accepted, 
there too it ought to be carried through to its termination. 

31 CELSUS (Digest 27) If a plaintiff dies leaving several heirs, 
and one of them carries on the proceedings, it will not be true to 
say that the whole matter involved in the trial up to that point is 
before the Court ; as no one can bring before the Court a suit 
instituted by another, unless he has the consent of his coheirs. 

32 ULPIABTUS (on the office of Consul 1) Where a judge has a 
certain period of time laid down 1 within which he is to give judg- 
ment, but he dies, and another judge is appointed in his place, we 
must understand that the same period is laid down afresh with 
reference to the new judge ; although the magistrate in appointing 
him should not state this expressly ; provided always that this 
does not go beyond the statutable period. 

S3 MODESTDSTUS (Rules 3) A man is not held to have agreed to 
a particular judge because he calls upon the plaintiff to state the 
nature of his action in that judge's court 

34 JAVOLENUS (extracts from Oassius 15) If a man dies after 
joining issue as defendant at Rome, his heir, even though his 
domicile should be beyond the sea, must still defend the case at 
Rome, because he steps into the place of the person by whom he 
was appointed heir. 

35 THE SAME (Epistles 10) It is not the case that whereas the 
obligation of a surety can be left contingent or even, expressly con- 
tracted in such terms as to refer to a future day, so too an action 
can be left contingent, or relate to something as to which an 
obligation may arise subsequently. I suppose nobody will deny 
that a surety can be given before the principal debt is contracted, 
but that there can be no issue joined before there is a debt in 
existence. 

36 CALLISTBATTJS (Inqwiries 1) In some cases, where there is 
sufficient cause, and particular kinds of parties are concerned, the 
hearing may be ordered to be postponed; for example, where 
documents bearing on a case are alleged to be in the hands of 
persons who will have to be absent in the service of the State. 
This was laid down by the Divine brothers in the following terms : 
"Humanity requires that a postponement should be allowed: oft 

1 For pravtitv read praetfituta. G M. 



310 On trials at law [BOOK/ 

7 

the ground of accidental misfortunes, for example, where a father 
who is party to an action has lost his son or (laughter, or a wife 
her husband, or a son his parent, and that in other cases of the 
same kind the inquiry should be postponed, within certain limits 1 ." 
1. Where a senator volunteers to manage some other person's 
affairs in a province, he has no right to decline to sustain an action 
on negotm gefa ; Julianus expressed the opinion that he is obliged 
to defend the action, because he contracted the obligation of his 
own accord, 

37 THE SAME (Inquiries 5) If an inquiry is made as to alleged 
violence and OH to the fact of possession ; the question of violence 
should be taken before the question of ownership, according to a 
rescript of the JDiviao Hadrian addressed to the Thessalian com- 
munity in the Greek language. 

38 LierNNiUH WIT KIN VH (Hulvx 4j A thing given by way of 
legacy, if it in sued for by an action //*- pumnwin, ought to be 
handed over where it in, unless it was removed with malice on the 
part of the heir; and in that case it ought to be handed over where 
it is sued for. It must bo added that a legacy defined by weight 
tale or measure ought to be handed over where it is sued for, 
unices the boquost contained homo such additional words as "a 
hundred bushels out of such a warehouse " or "so many ampJtowe 
of wine out of such a vat." But if the legacy is sued for by an 
action in, rwto t the action, we may add, must bo brought where the 
thing is ; and if the thing is tnoveable, an action (id ewhibendwn 
may be brought against the heir to make him produce it ; becaxise 
then the legatee can bring a wutdifiatfa to recover it. 

39 PAPINIAMTH (QitMtwtw Si; if the man appointed judge is a 
lunatic, there IB nothing that need prevent there being a valid trial 
in the fact that he is tumble to act as judge at the time ; BO that 
whatever he lays down in a judgment given after he recovers the 
use of his wits may be upheld ; for a judge to bo appointed, his 
own presence or knowledge is not required, I. When a man 
cornea to Itume on a legation, he can always be surety in any 
matter, since he cannot make une of hi privilege, where his con- 
tract was entered into in Italy* 

40 THE BAMK (QuftotionB 4) It IH not everything which a judge 
i empowered to do that in made a matter of legal compulsion. 
1. If a judge in giving judgment fchould maliciously omit some 
part of hi duty, contrary to a stututable rule, he offends against 
the statute* 

1 M, thinks the text of the rescript is omitted* 



TIT. i] On trials <xt law 311 

41 THE SAME (Questions 11) In all bonajffide actions, so long 
as the day for paying over money has not arrived, if anyone applies 
to have an undertaking given for payment, the order will be made 
on sufficient cause shown. 

42 THE SAME (Questions 24) If the wife of a legate is divorced 
from her husband at Rome, the opinion has been given that [if she 
sues for dos] the husband must be ready to defend the action in 
Borne* 

43 THE SAME (Questions 27) Where a man stipulates that a 
block of chambers shall be built for him at Capua within a specified 
time, it is recognised law that, when the time expires, he can bring 
an action for damages to the extent of his interest wherever he 



44 THE SAME (Besponsa 2) The discharge of the duty of judge 
is not obstructed by the fact that, after an action has been com- 
menced against all the guardians, some of the number have become 
absent in the service of the State, since the management carried on 
by those who are present can be distinguished from that of those 
who are not defending the case, and a separate estimate can be 
made. 1. If a person on whose account an action has been 
brought through a procurator afterwards turns out to be a slave, 
the defendant ought to be dismissed from the action, but this will 
be no bar to the principal, if on some future day he should choose 
to bring the action in his own name. 

45 THE SAME (Besponsa 3) A banker ought to be sued where 
the contract with him was made, and no adjournment of the case 
should be allowed save on sufficient grounds, [for example,] to 
allow of his books being brought from a province. A similar rule 
holds with reference to an action on guardianship. 1. Where the 
guardians of a girl have judgment given against them in the 
province in an action which they defended on behalf of their ward, 
the curators of the girl are compellable to obey the decree in 
Borne, the fact being that the girl's mother borrowed the money 
in Rome, and the girl was her mother's heir. 

46 PAULUS (Qmstwns 2) A man who is appointed judge con- 
tinues to hold the office though he should come to be insane, 
because he was properly appointed judge at the outset ; but in 
case of a serious illness he is excused the necessity of sitting ; 
accordingly someone else must be put in his place. 

47 CALLISTEATUS (Qw$tion$ 1) Care must be taken not to 



312 On trials at law [BOOK v 

/ 

appoint as judge anyone whom one side asks for expressly by 
name ; (such an appointment, according to a rescript of Hadrian, 
would be a thing of bad example ;) unless special permission for 
this being done should be given by the Emperor out of respect for 
the person asked for as judge. 

48 PAULUS (Responsa 2) The following is an extract from a 
letter of the Divine Hadrian : Magistrates are not in the year of 
their office to commence any proceedings on their own behalf 
either as plaintiffs or defendants, nor are they to be judges in a 
matter which they are concerned in as guardians or curators. But 
as soon as the terra of their office expii'es, then actions may be 
brought both by them 1 and against them. 

49 THE SAME (JRe$2>onsa, 3) A vendor, being called upon by 
the purchaser to defend him in an action brought by a person who 
claimed to recover the property as owner, declares that he has a 
special right to have his own judge ; the question is whether he 
has a right to remove the case from the court of the judge before 
whom the matter has been begun between the plaintiff and the 
purchaser to that of his own judge. Paulus answered that the 
practice is for the vendor to take the purchaser's judge, 1. Judges 
appointed by the Pnoses commonly continue to hold their office 
even in the time of his successors, when they are still bound to 
deliver judgment, and their judgments are upheld. Scsevola too 
gave his opinion to the same effect, 

50 ULPIANUS (Fideicommma 6) If an action is brought for a 
fideicowwnissum, and the defendant [the heir,] declares that the 
main part of the estate is somewhere else, he cannot be compelled 
to execute the trust [in pursuance of the action] ; it is in fact 
provided by a great number of imperial enactments that a fidd- 
eommissum must be sued for in the place where the bulk of the 
estate is ; unless it be shown that the testator desired the trust to 
be executed in the place where the action to enforce it is brought 
1* The following point has been considered in connexion with a 
question of debt : Suppose in the province in which the action on 
a jfcdeicommissvm is brought, there were an excess of debt ; 
would & prcescriptio be admissible on the ground that the bulk 
of the estate was somewhere else? However, the rule is that 
even in such a case the plea of debt makes no difference, debt 
not being a thing which depends on locality, but one affecting 

1 del. Trpta row? ^t^yovra.9 and rofr favyovvi* M. 



TIT. i] On trials at law 313 

the whole of the estate ; a debt, it is well known, is a deduction 
from the whole of the property, not from the resources existing at 
a particular place. Suppose, however, this particular portion of 
the property were specially charged with some burden, such as, 
for example, that of an alimentary provision which the testator 
directed to be paid in Borne, or with taxes, or any other burdens 
the payment of which it was impossible to get remitted, would the 
plea be admissible? In such a case the better opinion, I should 
say, is that it would. 2. However, there is in fact a rescript to the 
effect that a fideiwmmisswm, should be sued for at the place where 
the heir has his home. But whenever an heir once begins to 
pay in discharge of a fdeicommiaswin, he cannot afterwards have 
recourse to the above plea, 

51 MABOIANUS (Institutes 8) even though the inheritance 
should have come to a man whose home is in a province. We may 
add that the Emperors Severus and Antoninus laid down by rescript 
that .if the party 1 agrees to pay in discharge of the trust in some 
other place, he is bound to pay accordingly in the place so agreed 
upon. 

52 ULPIABTUS (Fideicommissa 6) Moreover if the heir appears to 
the action on tbejKdwcommissim and has recourse to other grounds 
of defence, but avoids this one, he cannot afterwards fall back upon 
this ground, even before judgment is given. 1. If a testator orders 
that corn tickets (tesserw fnwwntcwice) should be bought for his 
freedmen, then, although the bulk of the estate should be in a 
province, nevertheless the correct view is that the Jidei^ommissmn 
must be discharged in Borne, as it is clear that that was the 
testator's intention, considering the nature of the purchase directed. 
2L Again, if the case should be that there are left so many pounds 
of silver or gold to such and such honourable persons, and there 
are sufficient assets in Borne to discharge this Jtdetcomnwwn ; 
then, although the main bulk of the whole assets should be in a 
province, we shall have to say that the trust must be executed in 
Borne ; as it is very unlikely that a testator who desired honour 
to be done to persons to whom he left such small jfcdeieommissa 
should have wished them to be discharged in the province. 3. If 
th thing left by way of fidewommi&sum is on the spot, the correct 
view is that the action cannot be mei by a prawcriptio founded 
on the feet that the balk of the estate is elsewhere. 4. But tf 
the object of the action i$ to have given on the spot not the i 

1 Bead fidei communem for fidei commits ariut. Of, M. 



314 On trials at law [BOOK v 

/ 
thing left by fidticommissum, but security for the discharge of the 

trust, it is a fair question whether this plea is not available ; but I 
should say it is not ; nay more, even if there is nothing at all on 
the spot, still the defendant should be ordered to give the security. 
What is there for him to be afraid of? if he does not give the 
security, the plaintiff will be put in possession in order to secure 
the fideicomtnissiwn. 

HERMOGENIANUS (epitomes of la/w 1) There are just a few 
special cases in which slaves are allowed to appear against their 
owners ; one case is where a slave alleges that a testament is kept 
back in which, as he declares, ho was given his liberty. Slaves are 
also allowed to inform against owners accused of short deliveries 
of the annona of the Roman people, also of insufficient returns of 
property, alRo of coining. Besides this they may proceed against 
their owners to procure freedom left them byfideicommissum; as 
well as in caes in which they allege that they are bought by their 
own money, and that, contrary to the faith of the agreement, they 
have not been manumitted. Moreover, where it is provided [by 
tcHtamcnt] that a slave nhall be free on rendering his accounts, he 
has a right to ask for an arbitrator between himself and his owner 
to examine* hin accounts. Again, if a wlave chooses to rely on the 
good faith of a person who promised that he should be bought 
with that person 'H money, and be manumitted on repayment of the 
sum by himself, after which the person in question declines to take 
the money when tendered, the nlavo has a right given by law to 
inform as to the terms of the credit on the strength of which the 
contract was made. 

FAULUS (Sentences 1) An inquiry of greater importance 
should not be prejudged by a case of less importance ; the more 
important question attracts the less important case. 

THE BAME (on tJie office of assessor) A citation made by a 
preceding judge ought to count as one of the three citations. It 
is true that if the whole number of citations should have been 
completed by the preceding judge, the practice still is for the 
successor to issue one more. 

TJKPIANUB (on Bdbinm 30) Although it is perfectly true 
that [only] a real procurator can bring a matter before the Court, 
still, where a man, without being a provivrator, proceeds to joinder 
of issue, and, after that, the principal ratifies his act, it is held, by 
relation back, that the matter has been properly brought before 
the Court* 



TIT. il On trials at law 315 

\ 

57 THE SAME (on Sabmus 41) There is a good right of action 
against a jttiusfamilias, both on contracts >nd delicts ; but if the 
defendant dies after joinder of issue, the action is transferred to 
his father ; only however as an action de peculio and de m rem 
verso. It is clear that if a fliusfamilias undertakes to defend an 
action as procurator for some one, then, on his death, the action is 
transferred to the person whose case he defended, or [if judgment 
has afready been pronounced,] an action 1 on the judgment may be 
given to the same person. 

58 PATJLTIS (on Sdbinus 13) An action is put an end to if the 
person who ordered the judge to hear it forbids him to proceed, or 
indeed any magistrate does so who possesses superior authority to 
the first in the same kind of jurisdiction, or even the judge himself 
comes to be vested with authority equal to that of the magistrate 
who appointed him judge. 

59 ULPIAIOTS (on Sabimts 51) If, in the order given to a man 
to act as judge, no place is mentioned, the magistrate is regarded 
as ordering him to act in the place where the Court is usually held, 
provided the litigating parties are not put to inconvenience. 

go PAULTJS (on SaUnus 14) When a judge dies, whatever it 
was that he had to adjudicate upon, the person who is put in his 
place is bound to address himself to the same point 

61 ULPIANUS (on the Edict 26) It is commonly said that the 
point which is the subject of the trial is whatever it was that the 
litigating parties both intended ; Celsus however declares that there 
is some risk in ascertaining this by reference to the defendant 
personally, because he will always try to avoid an adverse judgment 
by saying that that was not the point agreed upon. On the whole 
then, it comes to this ; the best rule to give is not that the sulgect 
of the trial is whatever the parties intended that it should be, but 
that nothing is the subject of the trial which it was expressly 
intended that it should not be. 1. A judge for cases of robbery is 
not qualified to hear pecuniary cases. 

62 THE SAKE (on the Edict 39) It is impossible for a contest to 
proceed between two parties, unless one of them is demandant and 
the other is in possession ; there must be someone who bears the 
burden of being plaintiff and another who has the advantage of 

ion. 

1 For tranzactio wl read transit aetiove. 



316 On trials at law [BOOK v 

63 THE SAME (on the Edict 49) A proper defence implies this : 
the party accepts a trial, either in his own person or by an agent, 
always giving security ; and a man is not held to make a proper 
defence who does not pay what the judge orders. 

64 THE SAME (Disputations 1) Damages for dolus are not 
assessed by the judge by reference to the actual interest of the 
plaintiff, but by reference to the value asserted on oath : indeed, it 
is admitted that even a thief has for this reason a good right' of 
action on a deposit or on a loan for use. 1. If a man who is 
prepared to bring one kind of action first accepts security that the 
judge's order will be obeyed, and then proceeds upon another kind 
of action, he will not be able to sue on the stipulation, because the 
undertaking appears to be given in reference to a different matter. 

65 THE SAME (on the Edict 34) A woman ought to sue for 
her dos where her husband's home was, not where the written 
assurance of dos was made ; the contract of dos is not of such a 
kind that regard should be had 1 to the place where the assurance 
was executed so much as to the place which the woman herself 
would have naturally made her home in consequence of the 
marriage. 

66 THE SAME (Disputation 2) Where a man raises an issue in 
ambiguous terms or unes obscure language, his expressions must 
be construed in the way that makes most for his own advantage. 

67 THB SAME (Disputations 6) When a slave avers that he 
has been bought with kit* own money, if he establishes the fact, 
he will bo deemed free by relation buck to the time when he was 
bought, since the Imperial enactment does not order that he shall 
be pronounced free, but that liberty shall be made good to him. 
Accordingly the owner will be compellable to manumit a slave who 
buys himself with his own money ; moreover if the owner should 
keep out of the way, the proper course is 2 to go by the analogy of 
those senatorial decrees which deal with the question of gifts of 
liberty made by way offideicommissum. 

68 THE SAME (Disputations 8) A peremptory summons (edic- 
twm,) is arrived at in the following course : the defendant failing to 
appear, the plaintiff asks for one summons, next for a second, 

69 THB SAHB (on all the Courts 4) after an interval of not less 
than ten da#s ; 

1 Dele 4, M. 

* Dele debere, or, with M., read d$ ea r& 



TTF. i] On trials at law 317 



70 THE SAME (Disputations 8) then for the third ; and all these 
having issued he may sue out the peremptory summons. It was 
called peremptory, because it put an end to (perimif) the con- 
tention, that is to say, it did not allow the other party to shirk the 
trial any longer. 

71 THE SAME (on att the Courts 4) In the peremptory summons 
the judge who issues it gives warning that he will hear the case 
and give judgment even if the other party fails to attend. 

72 THE SAME (Disputations 8) This summons is sometimes 
allowed when the full number of summonses above mentioned has 
been issued already, sometimes after one only or two, sometimes in 
the first instance, in which case it is said to be given once for all. 
Which course shall be taken is a question for the consideration of 
the magistrate exercising jurisdiction, whose duty it will be to 
arrange the series of summonses or to abridge the same according 
to the nature of the case or the person or the time. 

73 THE SAME (on all the Cowrts 4) Even after the peremptory 
summons is sued out, as soon as the day mentioned arrives, the 
defendant who was absent is still called upon, and, whether he 
answers or does not answer, the case will be taken and judgment 
will be pronounced ; though not necessarily in favour of the party 
who is present ; even the one who is absent may sometimes get the 
better if he has a good case. 1. But should the party who sued 
out the peremptory summons be himself absent on the day when 
the cause was to be heard, whereas the party against whom he 
sued it out is present, then the peremptory summons must be 
cancelled, and the cause will not be heard, nor will judgment be 
pronounced in iavour of the party who is present. 2. If the 
summons is cancelled, we may consider the question whether the 
rule is that the* defendant cannot be sued any further, or whether 
the contention is still open, but simply the particular proceeding 
in which the summons occurred goes for nothing ; and the better 
view is that the particular proceeding alone goes for nothing, but 
the parties caii proceed to litigate afresh. 3. It must be under- 
stood that if judgment is given against an absent person on the 
strength of a peremptory summons and he appeals, he will not be 
allowed a hearing, supposing, that is, his absence was contumacious; , 
if it was not, he may be heard* , . Vt 

74 JULIANS (Digest 5) Whatever matter the judge he**&&e 
is compellable to pronounce Judgment upon it too. 1. WiWftH* 
judge has been appointed to "decide a matter, provided the tthmtitt 



318 On trials at law [BOOK v 

involved does not exceed a certain sum, he may still adjudicate 
in respect of a higher amount, if the parties agree. 2. On one 
occasion, I had undertaken to defend an action brought against an 
absent person, and I joined issue with the plaintiff at a time when 
the person in question was dead, after which I lost the case and 
paid the damages assessed. The question arose whether my pay- 
ment was a discharge to the heir of the deceased, also what sort 
of action I coiild bring against the heir. The answer was that 
itwie joined through a person who defended the case on the debtor's 
behalf IB no joinder at all whore the debtor is already dead, and 
consequently the heir in not discharged, on the other hand that the 
pcrHon in question, if he paid in pursuance of a judgment, cannot 
sue to recover the money ; however, he has a good right of action 
against the heir on wyot'w ywfa*, and of course the latter can 
protect himself by the mcqrtw of dalw matus, if he should be 
sued by the original plaintiff, 

75 THE HAM K (Diywt SO) If the Pitetor orders a man who is sued 
for a debt to appear in Court, and, after the scries of summonses is 
gone through, pronounce* that the absent defendant must pay the 
money, then, if an action is brought on the judgment, the judge 
who hears the cawo eunnot as a matter of course inquire into the 
ground* of the Pwutor'H decision ; otherwise such summonses and 
decrees made by the Proton* will be a mockery. Note ly Marcellus : 
if the plaintiff craftily and with knowledge of the facts made some 
false allegation, and it in clearly proved that it was by that means 
that he got a favourable tleewion from the Praetor, then my opinion 
iB that thojwtee ought to Itaten to the defendant's complaint; 
Note Ijf Powfa* : but if the reamm why the defendant was not able 
to appear wan that ho wan hindered by illneBR, or was detained by 
bugmeHH of the HUite, I should Hay that, in Huch a case, either action 
against him ou the judgment ought not to be allowed, or else the 
Prcotor ought not to allow execution on the judgment itself so given. 

76 ALFEKUH (Itig&t 0) A case was stated to the eifect that a 
number of judges having been appointed for the same matter, some 
of them, after listening to tho case, were allowed to retire, and 
others wore put in their places; whereupon the question arose 
whether a change fat rewpcct of some particular judges left the 
matter the same or made it a different case. My answer was that 
not only one or two judges might be changed, but even the whole 
bench, and still it would bo the name matter, and the case would 
remain the same that it waa before ; indeed this, I said, was not 



, i] On trials at law 310 

the only instance in which it happened that, though the parts were 
changed, nevertheless the thing itself was held to be the same ; as 
it occurred in a great many other cases. A regiment was held to 
be the same, though numbers of the men were killed and others 
had been put in their places, and the people at large were looked 
upon as being the same people at this time as they had been a 
hundred years ago, though not one of the old number was now 
living : in the same way, where a ship had been so often repaired 
that there was not a single plank still in her that was not new, 
nevertheless she was regarded as the same vessel. If, I said, any- 
body held that where the parts are changed the thing itself becomes 
a different individual thing, it would come to this, on his principle, 
that we ourselves are not the same persons that we were a year 
ago ; the fact being, so philosophers tell us, that the very smallest 
particles of which our bodies are composed 1 are every day being 
detached and others from without are coming into their place. 
Accordingly, where the outward form of a thing remained un- 
changed, the thing itself, I said, was held to be the same. 

77 AFBIOASTCTS (Questions 3) In private matters the son may 
be judge in the father's case, or the father in the son's : 

78 PAULTJS (on Plcwtius 16) as the business of judging is a 
public office. 

79 ULPIAJSTTTS (on the office of proconsul 5) When a man is 
proved to have cited his opponent on insufficient grounds, he is 
bound to make good his travelling expenses and the cost of the 
trial 1. Where judges are in doubt about the law, the practice is 
for the Presses to lay it down ; if they consult the Prseses on a 
question of fact, he is not bound to furnish them with an opinion, 
he must tell them to pronounce judgment in accordance with their 
own conscientious conviction ; to proceed otherwise sometimes 
gives rise to scandal, and furnishes occasion for partiality and 
canvassing* 

80 PoMPOOTtrs (on Sabmus 2) Where a mistake is made about 
.the name or forename of a judge, then, according to the opinion 
given by Sertius, if he was appointed judge in pursuance of an 
agreement between the parties, the person to act will be the one 
whom both parties had in their minds. 

81 ULPUOTS (Opinions 6) A man who does not preside at a$y 
jwri&dictio, and is not clothed with any authority by the 

1 For conttiteremw read cowsister&mus. Cf. M. 



320 On inofficious testaments [BOOK v 

nor appointed by a magistrate who has the right to appoint judges, 
nor chosen as arbitrator by mutual agreement, nor confirmed in 
his position under some statute, cannot be judge. 

82 THE SAME (on the office of Consul 1) Sometimes the magis- 
trates of the Roman people are in the habit of expressly appointing 
the officer of the Court by way of arbitrator ; this should be very 
seldom done and only in a cawe of pressing need. 



II. 

TESTAMENTS. 



(VH the /?///>* 1-1) It must be understood that 
plaints of an inofficious testament arc frequently made; all kinds 
of persons alike beiritf allowed to raise the question of inofficious- 
wss, whether parents or children; it is true that those particular 
kinsfolk who are more remote than brothers would do well not to 
incur tin* burden of useless expense, as they would have no chance 
of succeeding 

2 MAKOIANUH (JiwtltufM 4) IVocccdings are taken on 
MnoiliciouH testaments on the *issumption that the testators were 
not in their right minds when they made their testaments. By 
this it is not meant that the person who made the testament was 
actually a lunatic or deranged, rather the testament was duly 
made, but it wus not in accordance with what family affection 
prescribes ; if the testator wens really a lunatic or out of his 
mind, the testament would be void* 

3 MAltt!EU-tw (l)ifft'Ht !*) The allegation that a testament is 
inofficious is made by adducing reasons to show that the applicant 
ought not to have been disinherited or passed ever, such a case 
often occurs where parents are instigated to disinherit or pass over 
their children by false statements about them. 

4 OAUTK (on the lex (ilitia) A parent ought not to bo humoured 
who commits a wrong against hit* children in his testament; the 
roanon why he doe* HO often being that he has allowed the cajolery 
and incitement** of the stepmother of his children to pervert his 
mind to that extent that he conceives a prejudice against those of 
IHH own blood. 

* After cokre read c& Of* M, 



n] On incffieiow testaments 321 

5 HABOBLLUS (Digest 3) Even those who do not descend 
from the testator in the male line have a right to take proceed- 
ings, as they can be taken on the testament of a mother, and 
the application is very often successful. The point of the term 
inofficious, as already said, is this, the parties applying show that 
they were passed over, or, it may be, even got rid of by disinherison, 
without deserving it, and consequently, unduly ; and the colour 
put on the matter, when it is argued in Court, is that the testator 
appears not to have been in his right mind when he framed such 
an unjust testament 

6 ULPIANUS (on the Edict 14) A posthumous son can allege 
that a testament is inofficious where the testator was a person to 
whom he might have become sum heres or statutable heir, if he 
were himself already conceived before the testator's death ; and 
he can equally do so where the testator was his cognate, because 
in that case too he could get bonorwrn possessio on intestacy. Does 
it come to this then, that it is made matter of reproach to the 
testator that he did not die intestate? This, we may be sure, 
no one could induce the judge to agree to ; the testator is not 
treated as if he had been deprived of testamenti faetio. What 
the applicant can charge the testator with is this, that he did not 
make him heir ; as, had he been named heir, he might have had 
the benefit of an order for possession iu pursuance of the clause 
as to giving the order to the mother of an unborn child ; and being 
once born he would have a right to ask for possession semwidum 
tabulas. On the same principle I should say that the plaint msty 
be brought by a person who, after the testament 1 is made, is 
extracted from his mother's womb by excision. 1. If some person 
who is not legally capable of succeeding to the deceased on in- 
testacy takes proceedings for inofficiousness, a thing which nobody 
prevents him from doing, and his application happens to be 
successful, his success will be of no use to himself but only to those 
persons who have a right to inherit on intestacy ; what he does 
is to make the deceased intestate. 2. When a man dies after 
bringing forward a charge of inofficiotisnesfc, d6es ha transmit the 
right of plaint to Ms heir? Papinianus afcsWered, aud the same 
thing is pointed out itf more than: ofie rescri^ that if the main 
dies a/ftei* he has already *6cepted boteorum possetsio, the right of 
proceeding *i&t tlie jaatttt'lfe ttmistoitfced. Even if the bonorwm 
possemo has not bken a&ed, fifrj biit tire contention has been be&tift 

' - 



Of. M. , t , n 
M. J. 21 



322 On inofficious testaments [BOOK y 

or put in train, or the party dies after taking steps to brin/the 
plaint, I should say that the right is transmitted to the heir. 

7 PATJLUS (on Septemmral cases] Let us consider how a 
man can be held to have put a case in train, so as to be able to 
transmit the right of action. Let us suppose that he was under 
the potestas [of the deceased], so that he does not require bonorum 
possessio^ and entry on the inheritance would be an act without an 
object ; if such a person simply gives warning that he means to 
make the charge or goes so far as to make a notification (denun- 
tiatio), or to serve the libel, he will transmit to his heir the right 
to proceed with the charge ; this is laid down in a rescript of the 
Divine Pius on serving libels and making notification. How then 
if he was not under the potestas of the deceased * does he still 
transmit the right of action to his heir ? I should say [again] that, 
if he does as much as is above mentioned, he puts the case in train 
sufficiently. 

8 ULPIANUS (on the Edict 14) Papinianus says (Question 5) 
very correctly that a father cannot institute the plaint for in- 
oflBciousness in the name of his son against the wish of the latter, 
as the wrong is done to the son. Immediately after he says that, if 
a sou dies after he has accepted bonorum possessio with a view to 
presenting the question in due form, there is an end of the plaint 
for iuofficiousness, as it was not allowed to the father [in his own 
person], but on behalf of his son. 1. If a man abandons the case 
after taking the preliminary steps required in the matter of a 
plaint for inofficiousness, he will not get a hearing afterwards, 
2, It has very often been laid down by rescript that where the 
Emperor is appointed heir, the testament can still be pronounced 
inofficious. 3. Papinianus says (Mesponsa 2) that there can be a 
good plaint for inofficiousness against the testament of a pater- 
famlias who is an old soldier, although the only property he had 

should be what he acquired on active service. 4. Where a soldier 
makes his testament while in military service, and dies within a 
year's twae after bis discharge, I doubt whether the plaint for 
texfiSciousBess is admissible, because his testament is in force all 
the while by military law; there is indeed good ground for 
sayi&g that it is not admissible* 5, Again, where the testament 
is that of a boy under age, bis mother cannot allege that it is 
inofficfoWj'b^cause it was his feiher who made it for him, this 
opinion w&s given by Papinianus, nor can his father's brother, 
because it ftf the son's testament; consequently the boy's brother 



TIT, n] On inofficious testaments 323 



do it either, if he let the father's own testament pass. If 
however the application was granted as to the father's testament, 
then the son's is upset too ; unless the rescission was expressly 
confined to what concerns the father, in which case the pupillary 
portion remains good. 6. If a man makes his son a donation mortis 
causa of a fourth part of what would have come to him if he 
the testatorhad died intestate, then I should say his testament is 
safe. 7. If a man makes secondary provisions in his testament 
(secundas tatwlas\ and thereby appoints a substitute to his son 
who is under age, this is not a sufficient ground for allowing the 
boy himself to have the plaint for inofficiousness. 8. Seeing that 
one quarter of the portion due [on intestacy] is enough to bar the 
plaint, a point to consider is whether a disinherited child who 
does not raise the complaint nevertheless counts (pattern fadaf) ; 
take for instance a case where there are two disinherited sons ; 
but no doubt he does count, so Papinianus lays down, and, if 
the other alleges inofficiousness, he cannot ask for the whole estate 
of the deceased, but only half. Similarly where there are grand- 
children through two deceased sons respectively, e,g. through the 
one several, say three, and through the other one, the grandson 
who stands by himself will be debarred the plaint by getting 
three twenty-fourths of the inheritance and any one of the 
others by getting one twenty-fourth. 9. The quarter will of course 
be calculated after debts and funeral expenses are deducted ; 
whether testamentary manumissions count, so as to reduce it 
further still, is a point to consider. Then how does the matter 
stand ? If, where a man is appointed sole heir, he cannot allege 
that the testament is inofficious, because he has got the Falcidian 
quarter, but the lex Falddia does not interfere with testamentary 
manumissions, it may be reasonably assumed that the quarter in 
oar case is to be taken after deducting the amount lost by manu- 
missions. It being accordingly the law that the quarter is reduced 
by testamentary manumissions, it will follow that, where a man's 
whole estate consists of slaves, if he gives them all their liberty, 
he. 'bars any plaint for inofficiousness ; unless, perhaps* in such a 
case* tte'scra, if, he was not under potestat, has a good right, when 
appointed heir by his father, to decline 'the inheritance, and, 
having by that means transmitted it to the substitute, thereupon 
to >britog the plaint for inofficiousness* so 1 , as to acquire tha 
inheritance [as] on intestacy without incurring the penalty niep* 
tioned in the Edict 10. Where a testator bade his heir perform 

. Of. M. 

21-2 



324 On inofficious testamenti [BOOK v 

some condition in respect of a son or of some other relation wdo is 
qualified to bring this plaint, and the latter accepted the benefit 
with knowledge of his position, we may well consider whether ho 
is not debarred from making the plaint for inofficiouBneHH, since 
he acquiesced in the will; and a similar question arises when the 
person from whom the gift came was a legatee or a sfatultber. 
It may fairly be said that the son is in fact debarred, especially 
where the party whom the testator ordered to make the gift WOH 
the heir ; however, if it was a legatee, may not the rule be that, 
where the right to bring the plaint for inoffieioufcncBH IWH once 
arisen, an oifer by the legatee will not take it away? Then why 
did we lay down the rule for the case of the heir in absolute terms? 
The reason was that before entry on the inheritance no right to 
bring the plaint can arise at all. My own opinion is that 5n this 
matter we must go by the event, so that if what was left the on 
was offered him before proceedings were taken by him, then the 
Bon has all he can usk for, as the gift is offered in pursuance of 
the tOHtator'w intention. 11. It follows 1 that where a man is 
appointed heir, say for one half, whereas he woxild have a claim 
to one-nixth of the tentator'n assets in cane of intcHtacy, and he m 
requested to hand over his inheritance after a specified interval of 
time, it may reasonably be said that he cannot institute pwcccdhiffH, 
because he has the means of taking the portion due to him and the 
produce thereof; it is well known that [where legacies ure deferred ) 
the heir must debit himself with the proceed?* of the property 
bequeathed towards the discharge of hi churn to the Kalculiau 
quarter. Hence if a man is appointed heir at the outnel to the 
extent of a half and is requested to hand over the inheritance at 
the end of ten years, he has no occasion to bring the plaint, 
because he can easily receive during that time the amount he had 
a right to and the proceeds thereof* 12. Where a man allegen 
that a testament iw void or nullified an well an inofficious, he nhoulU 
be culled upon to choose which contention ho would prefer to 
begin with, 13. If a disinherited mm in in poHHeHnion of the 
estate of the deceased, the portion named heir can HUC to recover 
the inheritance, but the son can bring the plaint in the form 
of a CTOHB action, juKt m he would proceed if he went not ia 
possession but were suing to recover* 14. It muni t>e remow* 
bered that a pornon who alleges that a testament in inofficious 
without grounds, and thereupon IOBCB, will forfeit what the 

1 Reference in to H and 8. 



TIT. n] On inofficious testaments 826 

men? gave him, and the fiacus can recover it by action as a thing 
which is taken away from the party for unworthineaB. However 
he is only deprived of what was given him by the testament where 
he persisted in maintaining a groundless contest till the actual 
decision of the Court was given ; if, before judgment, he gave the 
case up or died, what wan given him in not taken uway ; on the 
same principle, if he is absent and, that being the caae, a decision 
is pronounced in favour of the other party, who i prenent, we may 
again say that he can keep what was given him* But a man can 
only lose in pursuance of thin rule a thing which ho would have 
had the right to enjoy ; if he was requested to hand anything over 
to another, no wrong ought to l>e done fto the intended bene- 
ficiary]. Hence it is not a bad remark that in made by Pnpinianun 
(Rwpoma 2), that if a man in appointed heir and requested to 
hand over the inheritance, and after that he bring* the plaint for 
inofficiouHness and fails, nil he lottos is whatever he would have 
got under the te Fah'ulia. 15* Where a boy under age ha been 
arrogated [by the testator], being one of those relations who, 
xrreH|>cctive of any adoption and emancipation, have a right to the 
plaint for mofficiousnenH, I should Bay that lie in debarred the plaiot, 
because he has a quarter in purmwnce of the enactment of the 
Divine Pius. If however he bringn the plaint but doen not micoeed, 
will he lose this quarter? To thin I ahouid nay that cither he ought 
not to be permitted to move the plaint at all, or, if he is permitted, 
then, even if he doo not succeed, ho munt lie allowed to have the 
quarter as a debt which is owed him. 10. If the judge goes into 
the case of iuoffieiousness and decides against the testament, and 
there is no appeal made, the testament is rescinded in law, the 
person in who*e favour judgment in Riven will be atww faret or 
bonorum podstxtor, according to the nature of hi* claim, test** 
Bwmtery manumissions are absolutely void, legaok* are not payable, 
artd, If thqy should have been paid already, they can be recovered, 
cither by th* person who paid them or by the suooewsftU applicant* 
tte reoov*y being by utilis actio. AM a rule, if they were p*id 
before the proceedings commenced, the person to recover them Is 
th iuoeeafta applicant, so the Divine Hadrian and the Dhiit* 
MmflaU.doira- by r^oripi 17. JN*o doubt, if the allegation of 
twSkrfousaesti Is made <m tome very pieto ground llaw4 in lawv 
aa much as five yewns aft^r 4be tottafetf* daatfe, tkon manawlir 
siom already made or which there WM good rig^b* to demand fM 
be iwoked, bit tU aimmAri , party viU have a 
twenty 



826 On inofficious testaments [BOOK v 

9 MODESTIKUS (on inofficious testaments) But if a 'man 
proceeds within five years' time, manumissions are rescinded. 
However Paulus says the judge will allow cases of freedom given 
by way of fideicommissum, each person, that is, having to pay 
twenty aurei as before. 

10 MARCBLLUS (Digwt 3) If some of the judges in the case of 
an inofficiotis testament decide against the testament and others in 
favour of it, as is occasionally the case, it IK more humane to go by 
the opinion of those judges whose view was in favour of the 
testament, save in case of clear proof that their pronouncement in 
favoxir of the ponson named heir was unjust, 1. One thing in per- 
fectly well known : a man who accepts a legacy cannot with 
propriety maintain that the testament was inofficious unless he 
duly disposed of the whole legacy to some one else* 

11 MODESTIKUS (Response 3) I gave it as my opinion that 
even where a man is successful on the plaint for wofficiouwnoBS, 
still it does not follow that donations which the testator appears to 
have earned out in hin lifetime in favour of him [the defendant j arc 
upact, or that an action can be had to recover part of what he 
[the testator] may have given him by way of <to, 

12 THE HAMK (OH, pre&eriptiom] It tnakcH no difference whether 
a son who fa disinherited accepts a legacy left to hinwelf or getn it 
through IUH own HOU or slave to whom it wan left ; either way he 
will be barred by the imnwtptfa. Moreover if a nlave of uch 
a Bon ifi appointed heir, and the HOU mamunita him without first 
ordering him to enter on the inheritance, in order that the party 
manumitted may enter of MB own free will, the non doing 
this with a fraudulent intention, his action will t>e barred. 1. If 
a won who i diHinherited proceeds to auk a *tutid$bfr for the 
money which the latter has to pay, he IK held to accept hia 
father's will 2. If a non iiuititutGH proceeding** for a h*K*iey 
which his father revoked, and, being unsucceBBful, falln bock on 
the plaint for inoffieiouHneKH, he will not be birred by the ;w8?- 
sariptio ; as, grunting that by the original action lie affirmed the 
testament, still there m something on the other hand which ha* to 
be set down to the testator's own fault, o that the won cannot 
with propriety be refused a hearing. 3. Where a ncm of the 
testator oiml [hie father] a sum of money a co-debtor with Titiu*, 
and the father ordered in his testament that Titiuw nhould be 
released, the eon will not, if freed from the debt by a format 



TIT. n] On inofficious testaments 327 

release given to Titius, be deprived of his right of action for 
inofficiousness* 

13 SC^BVOLA (Response 3) Titia appointed her daughter heir, 
leaving her son a legacy, and in the same testament made the 
following provision : "everything that I have hereinbefore ordered 
to be given or done I desire to be given and done by whatsoever 
person shall be my heir or bonorum pomwor, even by intestate 
succession, and whatever I hereinafter order to be given [or done], 
I leave it in trust to such person to see that it is given or done." 
This question was asked, supposing a sinter [that to, another 
daughter 1 ] succeeds in a plaint brought in the Centum viral Court, 
will the fidticommiwa have to be executed in purntumce of the 
above clause? Answer : if the question in whether a man can legally 
impose a fidcicommiswm on those pernouH whom he exacts to 
succeed him on intestacy, as heirs or bonorwn powemore*, the 
answer is: ho can. Note by Paulw; ho approve* however of 
the view that fidcic/mimiwa made by a man who dies intestate 
need not be discharged, the party being deemed to be out of 
bis mind. 



(Questions 5) A father emancipated his son, 
and kept under his potestas a grandson through that son ; the son 
so emancipated afterwards had another son, and died, having in 
his testament disinherited both sons and passed over his father. 
During the inquiry whether the testament is inofficious as far as 
the sons are concerned, which takes the first place, the question a* 
to any issue to be raised on the part of the father of the deceased 
is in suspense ; but if the cone & decided against the sons, then 
the father's turn for the plaint comes, and lie can proceed with 
hia own case* 

16 . THE SAME (Questions 14) Though succession to the inherit- 
ance of their children is no right of the parents, considering what 
they hope on their children's behalf and their natural affection for 
them, still, when the regular order of mortality is inverted, the 
property ought* as a matter of natural feeling, to be left by 
children to their parents as much as by parents to their children. 
1. Where a man, after instituting proceedings for inofflciouaness, 
changes his mind, and then dies, the plaint is not allowed to hk 
heir; it Is not enough to commence proceedings, if the party <fo*s 
not choose to follow ttom up* 9. Where a son brings an aettomlbr 

Untesi Above w mdjfft* Wjtoi 'twriUr daugkUr' for <h* **! 



828 On inofficious testaments [BOOK v 

f 

inofficiousness against two heirs, and gets different deci8iona%om 
the judges as to the respective heirs, that is, he is successful against 
one, but is beaten by the other, it is open to him to sue debtors 
and he is liable to be sued by creditors to the extent of a share in 
the inheritance, and he can, to the like extent, recover specific 
property and divide the inheritance; in fact it is quite correct to 
say that an action familuv erciswmdw is open to him, as it is 
held that he becomes statutablc heir for a share ; accordingly 
part of the inheritance remains aubject to the testament, and there 
does not seem to be any objection to saying that the testator in to 
be held to die intestate in respect of a portion of hit* property. 

16 THE SAME (Rcspoma 2) Where a son has already taken 
proceedings in the matter of an alleged inofficious testament of hin 
mother against his brother who WRH appointed heir for a part 1 , 
and he wan Hiiccctmful, a daughter [sister of applicant! who take* 
no proceedings, or, at any rate, IH not successful in any, cannot 
take a share us stalutablo heir along with her brother. L A 
father, in pursuance of the right founded on emancipation, got 
an order for possession cottfnt t((bH/(t*t of his son's property, and 
actually took possession; after this, a daughter of the deceased 
son, who had been disinherited by her father, carried through on 
good grounds an action for inoHieiousness; in this ease the order 
for possession which the father got fulls to the ground ; because in 
tho former proceedings the subject of the inquiry was the legal 
position of the lather, not the legal character of the tentament ; 
consequently the whole inheritance must be made good to the 
daughter with mesne profits. 

17 PAULUH (Quwfiotui 2; Where a man abstains from impeach- 
ing an inofficious testament, by way of tacitly renouncing inn 
claim to the succession, his share does not count to the prejudice 
of any that desire to raise the plaint. Accordingly, when* one of 
two children who are disinherited brings the plaint on the ground 
of an inofficious testament of their father, and thereupon V~-lookin# 
at the fact that, if tho testament is upset, the other son too han & 
claim to succeed at> /M^^rv^thofirHt HOII would have no right 
to bring a wmlwttfa to recover the whole estate, (it will follow 
that, | if Hucli first son it* successful with the plaint, he will take \m 
stand ou the authority of a m judieula, \m anHuuiption being thai 

1 For de part* twU it ia propowd by M. to road cfe trlmto : whfoh would 
make tho above " Where a mm IWH taken proceeding** etc., ..heir for ona-thlnl." 
a Itt**rt the* itt&t ft before guta. UK M. 



n] On inofficious testaments 32d 

the oentumviral Court, at the moment when it made the testator 
intestate, must have believed him to be the only son in existence. 
1. When a decree is made against the testament as being in- 
officious, the deceased is regarded as having had no testamentary 
capacity. This construction is not to be maintained where the 
applicant is present and recovers judgment because the heir makes 
no defence, as in this case it is not held that the judgment of the 
Court makes law, consequently mannmissioncs are upheld and 
legacies are payable* 

18 THE SAME (on inoj$idaw& testament*) There is in fact an 
enactment of the Divine Brothers which recognises the above 
distinction. 



19 THIS BAME (QwatloHx 2) A mother at her death appointed 
a ntranger heir for three-quartern, und one daughter for a quarter, 
panning over a second daughter ; thereupon the latter brought the 
plaint for inofliciouHnesB and was sueceBttfuL I wish to oak what 
relief can be hud by the daughter who was named heir* My 
answer was this; The daughter who WHH paused over ought to 
sue to recover whatever site would have had if her mother bad 
died intestate. Hereupon it may be said that the daughter BO 
omitted, if she SUCH for the whole inheritance tib intestate and getg 
Judgment in her favour, will in fact have the entire and exclusive suc- 
cession, just as if the other had declined the statutable inheritance. 
However it is not admittsible that the daughter who was paased 
over should, if she brings the plaint for iiiofficiousneBB, be given a 
hearing in opposition to her sister ; and another thing to be said 
is that the sister who has made entry in pursuance of a testament 
is not on the same footing as one who declines to take up the 
succession : accordingly the sister [who was pawed over] mutt sue 
to recover half from the stranger, and it may be safely maintained 
that by such suit she will recover the full half, on the ground that 
half the Whole eatate is her proper share. It would follow from 
this tta* tit* testament is not upset altogether, bo* the testatrix is 
made intefttfctft to a certain exbtat, e*ae tteaeh the Court aet wide 
her laat will on the assumed ground oMttmity, The feet is that 
if any one holds thai where the daughter fctteaeftde on the plaint 
tite whole teetaanent is upeet,h nut to mttotafetd that her sister, 
who wa appointed heir, 'has aa good * right as the to enter on the 
inheritance, considering that ou*' irho entered in pumuaaotf-rf 
a testament which she thought wi* valid > cannot be regartliA at 
declining the auccewioa a&*ftto4to*v which ibe did not ktoow to fa* 



330 On inofficious testaments [BOOK v 

open to her; we know that even whore persons are aware of ''their 
legal rights, still they do not lose them because they choose to go 
upon some other claim which they believe to be good* This is 
exemplified in the case of a patron who adopts a deceased freed- 
man's will in consequence of a mistaken opinion which he has 
formed of it, as such a one is not regarded as having declined the 
lonorum powmio contra tafoulas, It is clear from this that the 
daughter who was passed over cannot sue to recover the whole 
estate, seeing that, even if the testament is upset, the right of the 
sister who was appointed heir to enter on the inheritance herself is 
unimpaired. 

20 SCLTBVOLA (Questions 2) Where a person wishes to make out 
a case of inofficiousnefls, in spite of its being denied that he is son 
to the deceased, ho IB not allowed to have the Oarbonian bonorum 
posmsio, as that is only granted in cases where, if the applicant 
were really son, he would be heir or bonorutn poweMor, the object 
being to enable him for the time being to bo in possession and 
have maintenance without being liable to have any action pre- 
judged that he might be in a position to bring; but whore a person 
raises a case of inofiiciousness, he cannot bring any action nor 
take any other proceeding except the IwrediMw jwtitw, and ho 
has no right to maintenance. The reuHon for the above rule in 
that otherwise the party might possibly be in a better position 
than he would be if the other side had admitted [that he wan a BOU 
of the deceased]. 



21 PAULUH (limpomd 8) Where a man commences the plaint for 
inofficiousness and afterwards drops the action owing to fraudulent 
representations of the person named heir, who pretends that he in 
under a tacit trust to hand over to him a third part of the in- 
heritance, he cannot be held to have abandoned the plaint, and 
consequently ho is not forbidden to recur to the proceedings which 
he commenced. 1. Again, the question has been mined whether 
the heir has a right to a hearing, if ho asks to have made good the 
payments which he made before the plaint for inofficiouHnesB was 
brought The answer given was that a man, who with hi** oyet* 
open discharges a fidewommwmm by which ho was not bound, ha* 
no right thereupon to an action to recover what he paid 2, The 
same authority laid down that where a person who iw ap|>ointed 
heir IB deprived of the inheritance by means of the plaint for 
inofficiousuesai everything ought to proceed m if no entry had 
been made on the inheritance; accordingly the person who 



TIT. n] On inofficious testaments 881 

appOTited heir will retain his full right of action against the 
successful applicant for any debt and he can set off any 
debt. 

22 TBYPHONINUS (friaputations 17) A son is not debarred from 
impeaching the testament of his mother for inofficiousness by the 
fact that hie father gets a legacy under the testament, or even has 
entered on the inheritance, although he should be in the father's 
potestas: indeed I have myself laid down that the father is at 
liberty to impeach it on his son's behalf, as the indignity affects the 
son. 1. It was asked further, supposing the son were unsuccessful 
in his impeachment, whether what was given to the father would 
escheat to the State ; the fact being that ' if he had succeeded, the 
benefit won would go to some one ofae,and that nothing in the ease 
turns on the duty of the father, but the whole question is OB to the 
merits or demerits of the son ? As to this, we must incline to the 
opinion that the father does not lose what won given him, if the 
decision is in favour of the testament 2. Much more IB it tike case 
that where a testator leaves me a legacy, and then his son takes 
proceedings to set aside the testament for inofficiouaness, and dto, 
leaving me his heir, whereupon I continue the proceedings relating 
to the inheritance, but fail of success, I do not lose the legacy toft 
qpe by the testament : I am assuming that the deceased son bad 
already commenced proceedings. 3. Again, if I adopt some person 
sui juris after he has already brought proceedings to try the 
question of the iaofficiousneas of a testament under which testa- 
ment a legacy was left me, and I continue the case as representing 
my adopted son, and fail of success, 1 ought not to lose nay legacy, 
as there is no demerit on my party such as to entitle the fiscu* 
to take away what was left mo*, seeing that I did not bring the 
axjtiou out my own personal behalf, but in virtue of a kind of right 
of succession. r 

23 PAULUB (en inofficious testaments) If your cas* is thai an 
emancipated son Is passed over [in bis father's testament] aod a 
gfsttdson through him who remained und*r the pvtostas of the 
testator Is appointed heir, [my answer is that] the son eaa sue for 
b&npruw possessio qgairut his own, spty^e testator's grandson, 
frit he cannot brtitg the pjaipt for M IncAcicms testament But ' 

if the emancipated son is disinherited fte'cttft bring the plaint, 

i < ** ^ * * ' **' * i * 



Bead 1k* ra*rtt *T teter*&^ 
Uoarttur. 

* for dtniictum r*A nUctitm. Of.K. 



332 On inofficious testaments [BOOK v 

thereupon he can be joined with his own son, and he will gdt the 
inheritance together with him. 1. If disinherited children have 
purchased the inheritance or any specific things contained in it 
from the persons appointed heirs, knowing that the vendors are 
heirs, or have hired land from them, or done anything of that 
kind, or have paid the heir debts which they owed the testator, 
they are held to acquiesce in the will of the deceased, and they are 
excluded from the plaint 2. If there are two sons disinherited, 
and both take proceedings for an inofficious testament, after which 
one of them resolves to discontinue the proceedings, his share goes 
to the other by accretion. The same follows equally if he is barred 
by lapse of time. 

24 ULHANUS (on Sabinm 48) It very often happens in con- 
nexion with the plaint for inofiicioiiBness that different decision** 
are pronounced in one and the same case* Kupposc for instance 
the applicant is a brother to the persons appointed heirs and the 
latter have different legal positions. Should thia be the case, the 
deceased muni bo hold to have died partly testate and partly 
intestate. 



25 Tirw HAMK (nixputntiam *J) If some donation is made not 
mortix Mima but 'niter virtw, but in any case with the intention 
that it shall count towards the quarter, it may fairly bo said thfst 
the plaint for inoificiousness does not lie, if either the party gets 
the quarter by the donation, or else, if he does not get HO much, 
the amount by which the donation falls short in mudo tip in 
accordance with the arbitration of an impartial person ; or, at any 
rate, [if he IB to have the plaint,] the donation must be brought 
into hotchpot 1. Where a man who has no ground on which to 
present the plaint for inofUciouHiiesH, being nevertheless allowed to 
do HO, endeavours to upnet the testament in part, and chooses one 
particular heir against whom to bring the plaint, [and is successful 
thereon 1 ,] the proper thing to nay in that, inasmuch UK the testa- 
ment in valid us to the remainder, and the persons who had a 
prior claim to the applicant are trinit out, the applicant ban hwti- 
tutcd the proceedings to good purpose* 

26 Tim BAMW (Dfoptottitiom 8) If a man is appointed heir on 
condition, say, that he manumits Ktichus, and ho doen manumit 
him, but after the tnanurnisKion the testament IH pronounced in** 
offieiouy of unjunt ; it in Htill right that lie should bo relieved, that 

Of. M. 



, nl On inojficioiis testaments 33S 

J W 



is> tEfct he should recover from the manumitted man the value of 
the slave, so as to prevent his losing the slave for nothing. 

27 THE SAME (Opinions 6) Where, after the impeachment of a 
testament for inofficiousness has been set on foot, the parties have 
come to an agreement by which they compromise the case, but the 
heir fails to abide by the terms of the compromise, it is held that 
the case for the plaint remains as it was before. L Where a man 
avers that he is the son of a testator who in his testament denied 
that he was so, but nevertheless disinherited him, there i still a 
good case for the plaint for inofiiciousneHH. 2. Tike testament of 
a soldier cannot be alleged to IKS inofficious even by an applicant 
who is a soldier himself, 3, A plaint to net aside a testament for 
inofficiousness in respect of a certain portion had l>een brought by 
a grandson of the testator against his own fiither'n brother, or some 
other person named heir, and ho wan BttcceHsful ; but the heir 
under the testament appealed : it was held that in the meantime, 
considering the want of means of the applicant, who wa a boy 
under age, he might have an order for maintenance on a scale 
corresponding to the amount of the fortune a share in which was 
being sued for in his name by the proceedings to impeach the 
testament as inofficious; and that the other party was bound to 
Ijteep him supplied accordingly till the ease WAS decided, 4. The 
plaint for inofficiousness may be brought on the testament of a 
mother who held the mistaken opinion that her son was dead, and 
so appointed some one else heir. 

28 PATJLUB (on Septemviral eases) In a case where a mother 
was informed falsely that her son, who was a soldier, was dead, aad 
she thereupon appointed other persona heirs, the Divine Hadrian 
decreed that the inheritance should belong to the son, on the 
incling that manumiBaiona and legacies were to be main- 
Particular attention should be paid 1 in this caae to the 
clause about manumissions and legaci^ ; ft* wh$re a 
at is mads out to be inofficious, noae of its provi^ons 




5) Where the Ugatw* ftwpecfe that 
pertou* nominated heir* and the: party who J taking: 

to tut wide the ttttawon* * fewflMwt w* in 
settled role that the legatee*} ip*e<* right *o appear 
argue in support of the will of the deceased; and the eame ptftM* 
have in fact a right to *pea! ,if Judgment is given against fc 



334 On inofficious testaments [BOOK v 

testament. 1. Even bastard children are allowed to alle$* in- 
officiousness in respect of the testament of their mother. 2. Where 
the impeachment of a testament for inofficiousness has been set on 
foot, then, although the matter should be settled by a compromise, 
nevertheless the testament remains in full force ; consequently the 
testamentary manumissions and the legacies, to the extent sanctioned 
[as to the latter] by the lex Falddia, retain their validity. 3. As 
a woman can never adopt a son without the leave of the Emperor, 
it follows that a man cannot bring proceeding** to set aside for 
inofficiousness the testament of a woman whom he falsely stipposed 
to be his adoptive mother. 4. Proceeding** for inoflieiousness 
otight to be brought in the province in which the persons nominated 
heirs have their home. 

30 MAKCIANCJS (Imtitutvs 4) Where a son has been given in 
adoption, the natural father has a good right to take proceedings 
to set aside the son's testament for inofficiousnesa l. According 
to a rescript of the Divine Heverus and Antoninus, guardians 1 can 
take proceedingH to wot aside a testament as inofficious, or aft forged 
(fnhum), without risking the low of anything left them by the 
testament. 



31 PAITIATH (on Septimviral mww) Where a person who in 
qualified to impeach a testament in unwilling or unable to do HO, ty 
is fair matter of inquiry whether it in not open to the person next 
in order to take proceedings. In fact the law is that it is, so that 
it is a cane for succession, I. On the question of the plaint for 
inoffieiousncHH oa the part of children or parents, it makes no 
difference who the person is that IB nominated heir, whether he 
is taken from among children or strangers, say fellow-townsmen. 
9. If I become heir to the person who wits appointed heir hiuiHclf 
under the testament which \ wish to impeach a inofficious, this 
circumstance will be no bar to me, especially if I do not possess 
the portion which IB in question, or only possess it in my own right 
(jure tuw)*. 8. The rule 5 different if a man makes me a legacy 
of what he received under the testament in question ; if I accept 
that, I am debarred from impeaching the testament How then if 
I confirm the tentator'8 will in some other manner ? Huppcma, 1W 
instance, after the death of my father, I endorse on the testament 
itself that I consent to it ; in this case I am debirrod front im- 
peaching it. 

1 For tutortfat* road 
* Ot 1% 41, 10. 1. pr. 



TIT. n] On inofficious testaments 335 



32 Itas SAME (on inofficious testaments) If a disinherited son 
acts as advocate or undertakes to be procurator for one who sues 
for a legacy under the testament, he is not allowed to impeach the 
same testament himself; a man who has in any way expressed 
his approbation of any testamentary disposition whatever of the 
deceased is regarded as accepting the testament 1. If a dis- 
inherited son becomes heir to a legatee and sues for the legacy, 
we may fairly consider whether he is not debarred from bringing 
the impeachment ; there is no doubt alxnit the will of the deceased, 
and on the other hand it is a fact that nothing has been left him 
by the testament However his safent course will be to abstain 
from suing for the legacy. 

III. 

OK THE ACTION TOR RECOVERY OF AN INHEKtTAKCK. 

1 GAIUB (on the provincial Edict 6) A man may have a right 
to an inheritance either by the old law or the new. By the old, in 
virtue of the Twelve Tables or of a testament made In due form 

of law, 

2 ^ ULPIANUS (on the Edict 16) whether the party is made heir 
directly or by his own act or through some one else, 

3 GAIUS (on the provincial Edict 6) for example, where a 
man has some person under his poteatua, and, that person being 
appointed heir, he orders him to enter on the inheritance ; and we 
may add that if a man is made heir to Titiua where the latter haa 
himself become heir to Beius, then, juat aa he may lay claim in aa 
action at law to the inheritance of Titius, oo he may to that of Seine 
too, A man may also be heir on intestacy, as where, let us my, he 
is *** kwe$ to the deceased, or he is an agnate, or be manumitted 
the deceased, or his paterfamilias manumitted him. Person be* 
attfee feeiro by the new law whenever they we entitled to the 
inheritance in virtue of a decree of the senate or of an Imperial 



4 PAULtrs(ott*^jffd!t<*l) If I bring the action for recovety 
of an inheritance (towKtatf* pditfe) agatest a man who ta J* 
poasearfon of a Ihtgte piw* of property which i the only 
of thecontentlofl ? hfAed*feadMt]iriH 1m un In limid m<n 
anything which come fatto Mi poaettion aftamrd* 



336 Action for recovery of inheritance [BOOK; v 

5 ULPJANUS (on the Edict 14) The Divine Pius laid do^'i by 
rescript that the possessor of an inheritance about which a con- 
tention arises is not to be allowed to sell any part of it t>efore the 
proceedings are begun, unless he likes to give security for the 
whole amount of the inheritance, or for the handing over of every- 
thing contained therein. However, the Pnotor announced by Edict 
that on special ground shown, he would allow nome portion of the 
property to be disposed of, though no such security were given, but 
only the ordinary undertaking, and that, even though the trial 
had begun ; beeaune, if diminution of the property were barred al- 
together, this might stand in the way of some independent desirable 
objects Suppose, for instance, something in required for funeral 
expenses ; thin is an object for which the 1'netor allows a portion 
of the property to be spent Again, suppose there IH ground to 
believe that if a sum of money is not paid by a given day, some 
article which is pledged for the debt will be Hold. A diminution of 
the property will also be necessary in order to provide food for the 
household ; furthermore, the Pnetor allown the sale of thingH which 
in a short while would perish. 1. The Divine Hadrian laid down 
in a rescript to Trebiua Hcrgianus that Jfilms AwaticuH should give 
security for the inheritance which it was sought to recover from 
him ; and then, the reweript continue^ he can mine the question of 
the testament being forged ; the point is that proceeding* on th* 
herwlfaitw pvtUw will l>e ntayed while the question of forgery in 
being tried 2. A trial which in had for the recovery of an in- 
heritance JB of that preeminence that no other proceeding IK allowed 
to prejudge the question which w at issue in it 

6 THH HAMK (on tlw Edict 75) Where a testament i alleged 
to be forged (ftthum), but a legacy in miod for in purnuance of it, 
either the legacy must be paid, on an undertaking being given, or 
the question munt be argued as to whether the legacy fa "duo Jon 
the footing of the testament itnelf j, although the toHtanicmt i 
alleged to be forged. But no legacy nhould l>o paid to the pernon 
who raincH the quoHtion of forgery, if the quewtion IH once wet down 
for trial 

7 TEE HAMK (w* the E<tirt 14) Where any one allege** that he 
haw a right to hit* liberty in purnuance of a tewtameut, fcho judge 
ought not to deliver judgment on the qxiewtion of liberty, lewt to 
should prejudge the question for whoever will have to pronouaeo 
on the tenUvment ; thib was enacted by the nenate ; but the Divine 
Trajan himself laid down that the trial on the question of liberty 



TIT. ra] Action for recovery of inheritance 387 

ouglifcto be stayed until the action for inofficiousness IB either 
struck out or carried through. 1. However, trials of liberty cases 
are only put off where the question of inofficiousuess hog reached 
the stage of joinder of issue ; if the matter does not come to that 
point, the question of lil>erty is not deferred. This is laid down in 
a rescript of the Divine Piu& The factw were these. Proceedings 
had been taken against one Licinnianus to determine Inn status, 
who accordingly, in order to prevent a speedy decision as to what 
his legal status was, avoided appearing at the trial on the question 
of liberty, declaring that he would take issue on the question of 
inofficiouttneHS of the testament, and would then bring a hnvdUatfa 
petitio, as his contention wan that the tenement made him free and 
heir. Hereupon the Divine Piu lay* down that if Ucinnlatitw had 
been in poHseRHion of the inheritance, he would be in a tetter 
position for being allowed a hearing, beeuuwe then he would have 
defended the action claiming to be heir-at-law, and it wtut open to 
the party who professed to be his owner to prosecute* the inquiry 
as to an inofficious testament ; but, as it was, his Rcrvittulo ought 
not to be suspended for five years on the pretence that there was a 
.trial for inofficiousness to come in which LIcinnianus himself had 
not joined issue, The Emperor did, however, allow the judge to 
fora an opinion in a general way whether the trial on the testament 
9*0 asked for in good faith, and ordered, in case he found that it 
was, that a short period should be fixed at the end of which, if 
issue had not by that time been joined, the judge who had to try 
the question of liberty should be called upon to do his office. 
2* But the Divine HUB [also] laid down that whenever a man has 
to defend a case in which the issue is as to hia own liberty and 
heirsbip, in which, however, he docs not allege that he is ftae by 
virtue of the testament, but that ho was manumitted in 0ome other 
W* **y for instance, by the testator himself in hifl lifetime, then 
the Wai of the question of liberty ought not to be postponed* wen 
though it were expected that judicial proceeding! would ,be taken 
a* to the teetemti&t ; it is true, the Emperor added, tW waa alwaye 
ratgect totibe proviso that the judge of the qqertjpn <tf }Arty must 
be warned that he me not to Ifoten to w vg*wt jtat fevour of 



8 PAUUJB (* Ifte Edict OL) A tpato i not prwettted fir<w 
suing to recover a rtatnteMe inhitww the groumd that W 
acted in pwroanoeof *h4iriU pf Ihe doe^tftod at time i 
did not know whrthe* the torttt mm valid ear soi t , 

; < ! M/llillWW^N Mr <v^* ..... ' ' :f "< 

M. J* flfi 



338 Action for recovery of inheritance [BOOK v 

9 ULPIAKTTS (on the Edict 15) It <wght to bo specific** that 
according to the strict rule the only person liable to a petitio 
forcditatis is one who possesses [i.e. exercises] either as heir or *is 
possessor, some [alleged] right, or possesses a thing forming part 
of the inheritance, 

10 GAITJ& (on the provinvml JEJdivt (>) however small the thing 
may be. I. Hence where a man in heir as to the whole estate or 
as to a share, he frames his issue so an to assert that the inheritance 
in life in whole or in part, but all that fa handed over to him, in 
virtue of the judge's office, in that which the other party IWH in hin 
pOHHCHwon, that IH, the whole of it, if the plaintiff in sole heir, or Jin 
any cane j wuch share in it as the plaintiff has in the inheritance. 

11 ITLPiANftTH (OH tlw Edict 15) A man POKHOHHGA as heir (pro 
Iwredd) when he believes himself to be heir. Whether a man can 
equally POHBCBH an heir when he known that he in not heir IK a 
question ; but Arrianun holds (f)# mtenlhti* b. 2) that he in liable 
[ to the proceeding under discuHHion |, and ProculuH wuintainH that 
such TH the present practice. Indeed it should be added that a 
hrtwrtnu powxxor is held to POSHCHH UK heir* L A man ponneHHeB 
"an poHHesnor" when he in nimply a plunderer, 

12 THK SAMK (on tiw Kdkt 0/J who, if he JH jinked on what 
ground he in in poHBCHHion, will only answer "Itecauno 1 urn,** und 
will not maintain that lie in heir, even by way of fatae pretence ; 

13 Tuw HAM (ou t/w Kdfat IS) in whort, one who in unable 
to allege any title to posHenn at all ; HO thieves und rohliorn are 
liable to the pntitw. L Moreover, thin title, pro JWMMXOW, in 
[one that may be] attached and, HO to Hpeak, fastened to any 
other title. For iiiHtauce it may l>e attached [ftwret] to the title 
of pro rmptort, (title as purehaHer) ; if I buy from u lunatic whom 
I know to l>e wuch, I POHHCHH HH pcwHCHHon Af^iin y the qucHtlou in 
awked in connexion with the title pro donato (a donee) whether a 
person who poHHewHen upon that title doen HO />w 'jMwwmnWt for 
inntance, a hunband or wife ; and JuIianuH'H opinion !H ^ikeratty 
adopted that ho or nhe docH POHUORH pro pomemm^ conHcrtuently ha 
or iho will IKS liable to the pvtitw hereditatw* Himilarly the title 
pro dote (by right of dower) may take the form of jK>8e^Son jtro 
po#fMM&orfyw* t for example, where I marry a girl under twelve yeaiu 
of a^e and accept Homething by way of do$ knowing the girP# ago. 
Again, if a legacy is paid me on ground** to my knowledge fatne, 
I (shall certainly poBBeww pro po$#mor<> 2* A man who hand over 
an inheritance [in pxitttuanco of &Jid&www*wmvri\ eamiot bo liable 



TIT. m] Action for recovety of inheritance 339 

to a 1nttitfa hereditatis, unless he did it dishonestly, that is, he knew 
[it was not to be done] and yet he did it ; even past dishonesty is 
material in bpctitw Jwredita&h, the view being that the party dis- 
honestly gave up possession* 3. Neratms says (Parchment* 6) that 
the pctitio hcredttcitis can be brought against an heir, even where 
he IB unaware that the deceased himself was possessing aa heir or 
as posaensor. Jf a b. 7 he say** that the rule is the same even where 
the heir believed that the things [demanded] were part of some 
inheritance which was open to him. 4, How if a person purchases 
an inheritance? ought an ntilix pet it to hereditatis to be allowed 
against him, to prevent hits l>eing worried by a number of separate 
actions? Of course the vendor is liable ; but suppose no vendor is 
to be found, or he Hold for a small sum of money and wan a bvtta 
fide possessor; can the purchaser be got hold of? Here Gaius 
Oaasius thinks an utilix actio nmnt be allowed. 5* The name rule 
hold* where the heir, being told to sell the inheritance for a nmall 
sum, BellH it to Titius ; Papinianus believen the rule to be that the 
action is allowed against the fidetcommissary ; OH it IB better that 
the heir should not be sued where he only received some very trifling 
price: 6. and the same rule applies where the heir was requested 
to hand over the inheritance, retaining a upocifted quantity. Of 
course, if he was requested to hand over the inheritance on receiving 
^pecified amount, such IB the opinion of Papinianus, the jtetitio 
Kereditatig cannot be brought againwt the heir, because what the 
heir receives by way of fulfilling a condition is not poe&eaaed by 
him as heir* However Babmun give** an opposite opinion in the 
cone of a xtutidiber \ and this is the truer view, as the money 
received from a vfatuliber IB part of the inheritance. 7* The above 
rule applies alno where the heir merely retains the profits arising 
from the inheritance, in this case too he is liable to the petitio 
hertditatis* & If a man buys an inheritance to which some one 
else is entitled, with knowledge of the fact, he pcweasea, so to 
speak, aa possessor, and thereupon some hold that he may be sued 
in a petitio hereditatis ; this opinion, however, I do not think is 
correct, as no one is a plunderer who pays a price ; however, being 
the purchaser of a single collective estate (vrnvereitoeh he is liable 
tq an uffliB actfo* flu Again, where a niiftt^ 
the ftlscus on the assumption that there Is no owner for it, it is 
periedJyjiwt that there shWW be aai^^ 
10* The Btatement U zoade in Mw^eUus (^ 
gives an inheritance as a fo* t ^ hwbftad is In poffsession of j 
inheritance by right of dow^r^|>n) fate\ but he is liable t 

99-9 



340 Action for recovery of inheritance [BOOK v 

pctitio hereditatis for recovery of it ; Marcellus however adds tK&t the 
woman herself is liable to a direct action, especially if a divorce 
has already taken place. 11. It is further settled that the heir 
of a deceased possessor is liable to &p<*titio /wrcd'itatw in respect 
even of such things aw the deceased possessed as purchaser, on the 
ground that the heir possesses "as heir/ 1 although he is beyond 
doubt equally liable to the suit in respect of things which the 
deceased possessed "as heir" or u as possessor.'* ia. Where a man 
is in possession of an inheritance on behalf of some one who Ls 
absent, it being uncertain whether that person will ratify his action 
or not, I shoxild say that he can be called upon to defend the ju'titio 
Iwreditutift on behalf of such absent person, but that he is certainly 
not HO liable on his own account, because a man cannot be held to 
possess as heir or as possessor, who possesses an representing 
another ; unless indeed it should be said that, inasmuch as the 
principal does not ratify, therefore the procurator is, so to speak, 
a plunderer; on that view ho can be held liable on his own account. 
13. Thvjwtitio Iwwdtitdw is not good simply against a man who 
possesses something or other which formed part of the inheritance; 
even if he possesses nothing, it is a fair question whether, by 
volunteering to defend the suit, though he does not possess, he 
docn not make himself liable* Oelsus tells us (/%, 4; that he in 
liable on the groxmd of fraud, as a man who volunteers to defer*! 
the petition actn fraudulently ; and MnrcelhiH expresses his approval 
of this opinion in general terms, in commenting on JulianuH; every 
one, lie says, who volunteers to defend a suit for recovery of the 
inheritance is liable just as if lie were in jwwsesHion. 14. Again, 
where a man uses fraud RO Jis to avoid l>eing in possession, he will 
l>e liable to a ptfMlo twreditati& But where I lone jwmseHHion with 
fraudulent intent, and then another acquires it who SH projw,red to 
Btaml a trial, Marccllus (/% 4) discusses the question whether 
thereupon any assessment of damages doeH not Ix&omc null and 
void as against the party so ceasing to JWSKOHB, ami, on the whole, 
he nays that it does, unless the party who sues has an intomtt hi 
itn txnng held otherwise ; but at any rate, he says, thero in no 
doubt that the assessment become* void if the party acquiring 
j>OHtteH!on iw prepared to hand over the property. But if the jmrty 
who went out of possession with dolm w nucd first, thin will not 
discharge the one who IKWBOHHOH. 15. [The petUio kmdfortM* 
may j abo f be brought] against a debtor to the estate, on the ground 
that he poBaenaeH (withholds) a right ; it is Mettled that the pttitfo 
may be brought ugamtft 'ptmBeHHors* of a right; 



TIT. m] Action for recover}/ of inheritance 841 

14 PMiLUS (on the Edict 20) and whether the defendant was 
liable on a delict or on a contract is a matter of indifference. The 
expression "debtor to the estate" is held to include a person who 
made a promise to a slave who wa part of the estate, or one who 
did some damage before the inheritance wa# entered upon, 

15 GAIUS (on the provincial tidht 6) or stole something which 
was part of the estate, 

16 ULPIAWUS (on tite Edict 15) Uut when the debt owed by 
the person against whom the iwtitio ia brought is deferred or 
on condition, no judgment can l>e gi veil agahwt the debtor ; it is true 
that, [in the case of nuch debts,] according to the opinion of 
Octuvenua, as reported by Pomponiua, it is the time when judgment 
is given that the Court mut look at [on the qucHtion j whether the 
day for payment IKIB come ; the same rule applies to a stipulation 
on condition : and, if the day haft not come, the defendant may be 
compiled, on motion to the judge, to give security for the discharge 
of tho debt when the day does come, or the condition happen* 
I. The pctitio hereditatis may equally be brought against a man 
who is in possession of the price got for things forming part of the 
inheritance, or who has received payment from a debtor to the 
estate, 2, Accordingly Julianun saya (J>iy. 6) that where a man 
iftings thepetitio heredttatis, and ha* received the damages assessed, 
he is himself liable to be sued in like manner* 3. The petition can 
be brought not only against a debtor of the deceased but against a 
debtor to the estate; indeed both Celsua and Julianas declare that 
it may be brought against a person who acted for the benefit of 
the estate as a voluntary agent, but that where the party wa* 
voluntary agent for the heir it certainly cannot ; there can be no 
petitio hercditatis against a debtor of the heir's. 4. According to 
Jultanus, where a man who was in possession as heir Sa ejected by 
force, the petition may be brought against him as being the 
possessor of a right, because he has the interdict unde vi, which lie 
Is bound to assign, if judgment is given against Mm ; but the party 
who ejected him is liable to be sued In the same way too, because 
he is in possession "as possessor" of ttdngt ibnotag part of the 
inheritance. 6. Julius says further t*mt If a man feel!* a portion 
of the Inheritance, whet%, when b* do^ so, lie Is tn possession of 
It or not, he is liable to the petition, to* tW* wh0ther he has b^ 
paid the purchase money or t tn a position to raefbr it, he totH 
the latter case] assigning his rfghte of action. 0. the same *H 



342 Action for recovery of inheritance [BOOK v 

to whom his freedinan transferred property in fraud of hifto the 
patron, because the transferee is liable to the Calvifiian action on 
the part of such patron ; the transferee is in fact debtor to the patron 
and not to the [deceased freedman's] estate. On the name principle 
there can be no jxtf/ftfo JwMditatis against one to whom the deceased 
[freedman] made a tfottfttio mortis causa. 7. Again, Julianas tells 
us that where a man [who assumes to be heir] hands over an 
inheritance or delivers specific objects in ptimiancc of a jidti- 
commismm, the petition can be brought against him, because he 
has a right to bring a condwtio to recover the things transferred 
in [the assumed] discharge of the trust, so that he is, so to speak, 
the 'pOH&CABor' of a right : 8* and he adds that if the party should by 
way of discharging the trust pay over the purchase money of things 
which he sold, the )>ctitio Jweditnth* can be brought against him, 
because he has a right to recover the money. In these cases 
however, so Julianus says, the defendant will only have to make 
over his rights of action ; sis the things themselves iu<* in existence, 
and the plaintiff can, if he likes, claim them by an action in rcm. 

17 GAIUS (on tk<\ 'immntwtl Kdi&t i\) If the possessor of the 
inheritance should, in the belief that he is heir under the testament, 
pay money out of his own pocket by way of discharging legacies, 
and some one who claims <tl> intexlato should recover the inheritance 
from him, theii, although it may be held to be so much the worst 
for the defendant if he did not look out for himself by taking a 
formal promise by stipulation that the legacies should l>e returned, 
in CIIHC the inheritance were reeovered by some one else, -still, 
inasmuch as it may chance that he paid the legacies at a time when 
no question had been rained, and it was for that reason that he 
omitted to have any undertaking given him such an above mentioned, 
the rule in that in such a ease, if the inheritance IK recovered, lie is 
to be allowed Lo bring an action for repayment of the money. At 
the same time, where the action for repayment JH allowed in the 
abenee of an undertaking* there is some danger of its being 
impossible to recover anything by the action, owing to want of 
meauy in the portion to whom the legacy was paid ; accordingly, it 
is laid down by a jMW<A.or MHMtltMM that the party who paid i to 
be relieved an follows ; lie is to recoup himself by retaining thing* 
which form j>art of the inheritance, but he must OHMigit hit* righto 
of action to the plaintiff in the peUtio, for him to take proceedings 
in pursuance thereof at hi* own risk. 

18 ULPUKXTB (<w the JSdiet 1C) The following I* a quotation 



. m] Action for recovery of inheritance 348 

worth^considcring. A person in possession of an inheritance effects 
a sale by the agency of a banker, after which the purchase money 
is lost in the banker's hands ; is he liable to a petitio hereditatis, 
having regard to the fact that he has got nothing and he can get 
nothing ? Labeo holds that he is liable, as the ill-advised credit 
which he gave to the banker must be at his own risk; but, 
according to Octavenua, he will only have to assign his rights of 
action, and for such rights of action he is liable to a petitio here* 
ditatw. My own view is that, in the case of a person who was in 
possession in bad faith, Labeo's opinion is the sound one ; but in the 
other cawe, that of a lonajide pOBHeaor,I should nay that Octavenus 's 
opinion is the one to follow. 1. Where proceeding* are being taken 
by way of patUfa Iwwdttatis againnt one who i not iu possession 
of a thing, nor, so to speak, of a right, at the time, but who after- 
wards gets hold of one of the two, will he be hold liable to the 
petition ? Oebus lays down quite correctly </% 4) that the order 
may bo very properly made upon him, though at firat he did not 
possess anything. 2* We may now consider what kind of *mbject~ 
matter is embraced by t\\Q petitio hereditutw. As to thin, the rule 
is that the action compriues every kind of thing that forms part 
of an inheritance, whether it conmstn of a right or of a material 
otyeet 

10 PAXJLUS (on the Kdlct 20) hi fact, it includes not only 
objects forming part of the inheritance, but even those which do 
not form part of it, but which nevertheless are at the rink of the 
heir, such as things pledged with the deceased, or lent to him or 
deposited in his custody. As to things given in pledge, there in a 
right of action to recover them separately, though they are atill 
comprised in the f^etitio heredtiatis too, like things in r&peofc of 
which the Publician action lies* It is true that there ran hardly 
be any [separate] action in respect of objecta which have beeo 
lent or deposited, still as people are sutyect to ri*k IB regard of 
them, it is fair that they should be given *p. , L But if the 
period necessary for acquiring by tmw M pwxrfuaer ftkmld have 
been completed by the heir himself, a thing o aeqtimd will not be 
comprised in the pttitio hereditoti*, be**u* the tatr, that fe, the 
person who would be plaintiff in theprifcfo, has a good iwdiMtfy 
and there is no emeptto allowed to the defendant in poMettiofe 
9. The^^^A^^i^^ftothwoompriwetW 
[deccsaed being) poeftewcvf had a rigkt of retention, though ixti>+ 



344 Action for recovery of inheritance [BOOK v 

swore that a thing was not the property of some one who* sued 
him to recover it and, after that, died, this too must l>e handed oven 
Indeed even where the possessor of the thing has lost it by his own 
negligence, lie will be liable accordingly- A similar rule applies to 
a plunderer, although he is not liable on the ground of negligence ; 
simply he has no right to keep the property in his possession. 
3. J have always maintained the opinion that where an inheritance 
has to be given up, servitudes are not included, because there is 
nothing which can be given up under that head, an there in in the 
case of material things and the profit** derived from them ; but if 
the owner of the servient land refuses to allow free pitn^age he 
can l>e sued in the appropriate action. 

20 U&MANUS (on the Kdiat 20) The inheritance | to t>e sued for] 
further comprise** whatever was procured in order to preserve the 
estate, aa, for example,slaves, cattle, and anything cine which wan pro- 
curedas a matter of necessity for the benefitof the estate. Where nuch 
thinga were bought with money which formed part of the inheritance, 
they are beyond all doubt comprised ; if they wore not KO l>ou#ht, 
it in a question for UH to consider whether they are comprised ; but 
F should nay they are even then, if some groat advantage to the 
inheritance in involved ; of course the heir must make good the 
purchase-money. 1. At the name time it in not everything that fr 
bought with money forming part of the inheritance that IB comprised 
in the jwtitio* Julianus, for instance, tells UH (/>?# <) that if the 
possessor lx>tight a slave with money which wan part of the inherit- 
ance, and then tlie patitio heredlM,i$ is brought against him, the 
filave will only be comprised in a ease where it was an advantage 
to the inheritance that lie should be purchased ; if the possessor 
bought the slave for hi own convenience, then what is comprised 
is the price which he gave for him. a. On the same principle, 
suppose the possessor Hold land belonging to the inheritance, -if 
ho hod no good reason for doing so, then, according to JulUimtH, 
the land itself with mesne profits is comprised in the suit ; but if 
ho did it for the purpoBo of paying a debt due from the estate, all 
that in comprised is the price which he received Ji. The thingtt 
comprised in the pettiw, he goes on to say, are not nimply such m 
existed at the moment of the <lcath, but any increase that UCCTUOH 
to the inheritance ul>sequcntly ; an inheritance dow, as a matter 
of fact, admit of increase and decrease. Anything which aoefuo* 
after the inheritance hiiM been entered upon, if it IH produced 
out of the inlieritanco itself, will, I should mj f accrue to the 



TEL m] Action for recovery of inheritance 346 

inheritance, but if it comes from some other source, it will not ; such 
things go to the possessor personally. All produce it* so much 
addition to the inheritance, whether it accrued after or before 
entry on the inheritance ; and the children born of female slaves no 
doubt accrue to the inheritance. 4. Whereas the statement was 
made above that all actions the right to which is part of the estate 
are comprised in the petltio, the question arises whether they carry 
with them their regular character or not For instance, suppose 
an action in which the measure of damages* is increased by the 
defendant's denial : doen the right to thin action carry the right to 
the increase with it, or in it OJKJII only for the nimple amount? 
Take the action under the te Aquilia. JuliamiH tells UH (Dig. 0) 
that the defendant will have to pay the nhnple amount* 5. The same 
writer says, and very juntly, that if the portwensor nhould have had 
judgment given against him in a noxal action brought by the 
deceased, he cannot now gat off on motion by a nurrender for twxa, 
because a man & only allowed to make such a surrender up to the 
time of an action against him on the judgment, but after he hau 
become defendant in that action, he cannot free himself by a 
surrender for noxa ; and iu fact he has been made such a defendant 
by means of the pettiio Itereditoti*. 0* i&aUUw the above, we find * 
great many questions digcutued relative to the i&titw her^ditaU^ to 
y*he sale of the assets of deceased pernou**, to paat fraud and to mesne 
'profits. But m an express rule was laid down on these subject* 
by a decree of the senate, the best plan ia to give the text of the 
decree and append an explanation* "On the fourteenth of March 
Quintus Juliub Balbus and Publius Ju ventius Celsus, Titus Auftdiua, 
CBnus SeveriantiB, consuls, expressed themselves on the subject of 
those matters which the Emperor ttoaar, son of [the Divine) 
Tr^auus the Parthian conqueror and grandson of the Divine Nerva, 
Hadrianue Augustus Emperor and migbty Prince on the third of 
March last preceding propounded aud net forth in a bill as to what 
he desired should be done, whereon they resolved as follows *-~ 
9 a, 'Whereas, before such portions of the goods of Ruaticus as fell 
to the State were sued for by the Treasury, those peraoas who 
deemed themselves the heirs sold the inheritance, we hpld thai 
interest ought not to be demanded on tke purchase money received 
as tibie price of the tibtfags sold, and the same rule must be 
in similar cases* 8i. We hold farther that, if judgmentwere 
against those persons who wfg defendants to ti*p*titw 
they wouid he boujad to pay <tw the purchase money whtote ^ 
to their hands as the yrtoMrf U7 ot^oU taetuded in tbeJ 



340 Action for recovery of inheritance [BOOK v 

which were sold, even though such objects were destroyed or 
damaged before the petitio was brought. 6 c. Furthermore, that 
where any persons should have laid hands on the goods of the 
deceased, knowing that they did not belong to them, even though 
they contrived before joinder of issue to avoid being in possession 
of them, judgment ought to be passed upon them juwt as much as 
if they were in possession ; but, wherever they should have had 
reasonable ground to believe that the goods belonged to them, the 
judgment should be only for the amount to which they were 
enriched by what they had done, 6 d. The senate held that the 
petitio Iwrcditatw mnnt be deemed to have been brought for the 
Treasury HO soon only as the party known that it is being brought 
against him, that is, so soon an it is notified to him or he is sum- 
moned by a letter or citation'." Wo have now therefore to apply 
the proper interpretation to the neparate terms of this enactment, 
7. The Senate nayn: " Whereas, before such portion of the goodw 
as fell to the State wore sued for by the Treasury ' etc. What ixx>k 
place was that portions which escheated to the State were nued 
for by the Treasury, but if the demand had boon for the whole 
inheritance, the decree of the senate would apply equally, and if it 
wore a cane of unclaimed properly being sued for by the Treasury, 
or goods which came to it on any other title, tt. still tho decree of 
the senate would apply, and it would be the htune thing if the claim* ri 
wore made by a municipality. 0. Moreover no one doubt* that 
where the ftctitto is brought by a private person, the decree of the 
Donate will apply equally, although it wan made with reference to a 
demand of the State. 10. It may IHJ added that the doereo in not 
put in force nololy with reference to inheritances, it w applied 
equally to &pmdlum wtHtrenm or any other collective unit of 
property fwuVmr/frw}. II. AH for the wordn "tho jwtitto hemii* 
tali* muni be (burned to have been brought HO noon" etc*: thin 
meattHHOHOon only an the party known that the inheritance IK being 
demanded of him at law, bceatwc, tho moment h known thin ho 
beeomoB at once a wwto Jide POHHCHH(>I\ "That in, HO noon m it in 
notified to him" ete*: Huppono however ho known that the nuit in 
being brought, but ntill nobody notified it to him, \vill ho from that 
time be chargeable with intercut on money realised by mile of tho 
good*? I Bhould nay that he will, Jeanne from that time lie in a 
wotejfofe p0BeHH0r, Ixst UH nuppowo <m the other hand that the 
notification waw made, but the party (loos not know, because notice 
waa given not to himnolf but to \m pyvrurator, Thou, an tho 
enatc roriulred that notification nhould be given to the 



TTT. mj Action for recovery of inheritance 347 

him&lf, it will not affect him, unless indeed the person to whom it 
was given informed him, but [it will] not [affect him] where, though 
he was able to inform him, he omitted to do so. As to the question 
who the person mut be by whom the notification is given, the 
senate lays down no rule on the subject ; accordingly the notice 
will be effectual whoever it is that gives it 12, The above relates 
to the case of honafide possessors, as the words of the decree are 
"those persons who deemed themselves the heirs"; where however 
a man sells an inheritance which ho knows docs not belong to him, 
then, beyond all doubt, what in demaiidable in the petitio 
heredittttis is not the purchase money of the things sold, but the 
things themselves and the incBiie profits of the same. However 
the EmiHjror Severus in a letter to Oclcr ia clearly uhown to have 
applied the rule to mdktjide powtcHHorH as well, though the decree 
of the Senate only mentions those who deem themMcIvcB heirs; 
(unless indeed we assume the words [of Severn*] to refer to such 
things an it wan desirable to sell because they were a burden rather 
than a profit to the inheritance ;) the renult being to leave it in 
the power of the applicant to choose what sort of charge he will 
make on the mala fide possessor, 1*0. whether he will charge him 
with the thing itself and the profits or with the purchase money 
and interest from the date of the action being brought, 1, The 
/Senate speaks of persons who deem themselves to be heirs; if 
however they deem themselves to be bomrnm powjaores or lawful 
successors of any other kind, or aver that the inheritance has been 
handed over to them [in pursuance of a jftd^commuifum] 9 they 
will be in the name position. 14 Papiniauus saye however 
(Questhm b.3) that if the possessor of an inheritance leaves tin- 
touched money which was found among the heritable effects of the 
deceased, he can by no means be sued for interest 15. The decree 
says intercut " on the purchase money received as the price of the 
things sold/' We must understand by purchase money received 
not merely money got in already, but money which might have 
been got in though it never was. 16* Hw if the possessor sell 
things after the petitio hercditati* hat been brought? In such a 
owe the things themselves and the mesne profit* will be comprised 
in the petitio. Should they however be tfefogs of such a kind thai 
they could yield no profits or were IWble to perish by lapse of 
time, but they were sold at their ftiU value, perhaps the plaintUf 4e 
the petitio may elect to have the pattbase money handed over *Hfc 
interest 17, The deore* proceed* ;W We bold that if judtftosat 
were given against thoee persons who were defendants T tb *** 



348 Action for recovery of inheritance [BOOK v 

petitio hereditatiSj they would be bound to pay over the purchase 
money which came to their hands as the price of any objects 
included in the inheritance which were sold, even though such 
objects \\ r ere destroyed or damaged before thGjwtitlo hwwlihitis wan 
brought/ 7 If it is a bonjrtjkfa possessor who Hoik things belonging 
to the inheritance, whether he received the purchase money or not, 
an [at least) lie has a right of action for it, he will be bound to 
make good the amount to the applicant ; however, where he haft a 
right of action, it will bo enough to assign such right, la If the 
possessor Hold something, and the true owner afterwards got judg- 
ment to recover it, whereupon the possessor restored the price he 
received for it, the money cannot be said to have come to his hands; 
though indeed it might be naid that at the outset the purcluise 
money in not comprised in the jwtitw t because the thing Hold wa 
not part of the inheritance ; however although what IK mentioned 
in the decree of the senate is not the sale of things which form 
part of the inheritance but the sale of things out of the inherit- 
ance, still he need not pay over thin money, as nothing in left in 
his hands. In fact Julianus himself <7>///. b. tt\ tells UH that the 
possessor will not have to make good to the applicant money 
received by him which was not really due, nor on the other hand 
can he emlit himself with any money that he paid which was not 
owing. 1 i). Again, if some article has been returned j by a purchase** 
from the possessor] by way of redhihUhn, then, no doubt, it in 
part of the inheritance, and the purchase money which was refunded 
will not l)o comprised in the ptiitw hwditnth* 20. Add timt 
if the possessor of the inheritance is bound to the purchaser in 
pursuance of the am tract of mile, his case must be held to be 
uufliticutly provided for by [the petitioner's] undertaking* fil. But 
the possessor is bound to hand over the purchase money for things 
Hold, even whore the things themselves are destroyed or lost Here 
this question arises : in he bound to hand over the money only 
where he in possessor in good faith, or equally where ho wan such 
in bad faith V AM to this, if the things are still in existence in the 
handrt of the jmrohoHor, and nre not destroyed or lont, then, no 
doubt, a fw</ft,>tf/$ poHHosHor in bound to hand over tho actual 
things or, if he cannot possibly recover them from the purchaser, 
he mut pay damngen to the amount assessed by the plaintiff on 
oath at the trial But, where the thing** are dentroyetl or lontv 
the actual value ought to be given, because if the plaintiff hud got 
the thing itaelf, he could have wold it, and then ho would not 
failed to get the actual value. 



TTT. m] Action for recovery of inJieritance 349 

21 <4wus (OH tJffi provincial Edict 6) A thing is regarded as 
destroyed (deperditwri) when it has ceased to exist in this world ; 
it is lost (dcmiwttmi) if is it acquired by Home one eluc by n&w, 
and has so been taken oat of the inheritance. 

22 PAULUB (on tlw Edict 20) If the hona fide posseaaor haa 
[now] got both the thing and the purchase money, for inwtance, 
because he bought the thing back, will he be allowed to way that 
he would rather give up the thing, and not the purchase money ? 
In the case of a depredator the rule laid down is that it is the 
plaintiff who should be allowed to elect ; mut we rather ay here 
that the possessor in question has a good right to be heard, if he 
desires to hand over the thing itself, though deteriorated, but the 
plaintiff in the petttw /teiwUtaf/X if /'<* desire* to have the purchase 
money, will be refused a hearing, on the ground thut thin last in an 
unconscionable demand, or munt we nay that, as the purchtwer in 
the richer by something contained in the inheritance, he ought to 
hand over along with the thing so much of the purchase money as 
is in excess of the present value ? This in a point to consider. Iu 
an address of the Divine Hadrian we find this imssago : * You 
must consider, conscript fathers, whether it in not the faireat rule 
that the possessor should not make a profit, but should give up 
the price which he received for another man' goocfc, as it may be 

/Tield that the purchase money received for the thing sold, where 
such thing formed part of the estate of the deceased, takes the 
place of the thing itself, and has in a certain wenee become a portion 
of such estate/' Accordingly the poHBeusor will be bound to give 
up to the plaintiff both the thing itself and the profit he made by 
the sale of it 

28 ULPIANUS (on the Edict 16) It is a fair question whether 
the bona fide possessor will be bound to give up the purchase 
money in all cases, or only where he is the richer by H ; suppose, 
for instance, after receiving the money, he loet it or spent it or 
gave it away. As to the expression "came to their hands,* It is 
doubtful whether it only refers to *h*t *hwe was at the otiteet, 
or the phrase applies equally to what remrfuB ; but I should 
toy [that it must refer to what remiw> oft fcooottat of 1 ] the next 
eiawe in the dmree (though tb*fc to'fcmWgnottt too), so that n0 
demand can be made except where the party iu enriched. L Ac- 
cordingly, if what comet to the pfcweaaor'a hands is not *e 
pnrchaw money alone, bttt ft prtal^ too, fo consequence tit 1M 

> Ot M. 



350 Action for recovery of inheritance [BOOK v 

money being in arrears when paid, it may be said that thig was 
comprised as well, as the party is enriched to that full extent; 
although the decree of the senate only mentioned the purchase 
money. 

24 PAITLTTS (on the Edict 20) Where the possessor is turned 
out by force, he IK not bound to hand over a penalty which became 
due to him thereon, that being a thing to which the plaintiff haw 
no right. On the same principle he is not bound to hand over a 
penal sum which some defendant to an action promised to pay him 
in case he should fail to appear at the trial 

25 ULMANUK (OH, the Edict 15) Again if he Hold part of the 
inheritance with a IM wnwuifiwriM (an agreement avoiding the 
sale on non-payment), it must be said, in accordance with the 
above, that he will have to hand over any gain ho marie in con- 
sequence of such agreement L Moreover, if he sold anything 
and bought something else with the purchase money, the yrtitw 
Iwwrfituth Mill comprise the purchase money, not the thing of 
which he acquired the ownership. If the thing [which he bought] 
in worth less than the sum for which it wns bought, he will be 
regarded as enriched to the extent only of the value of the thing ; 
on the principle on which, if he had consumed the thing (to nny 
oxtent|, he would not be regarded us enriched to the extent of Hs r 
full value. & Where tine decree says * where nny persons should' 
have laid hands on the goods of the deceased, knowing that they 
did not belong to them, even though they contrived before joinder 
of isHue to avoid being in possession of them, judgment ought to 
be pusHod upon them just as much an if they were in poHHCHHion/' 
those words must be taken to imply that past ^O/J/K an well OH 
present is to be brought into account in the jM'titw hsrw/ftfttw, 
and, in fact, ntf^a (negligence) too. Consequently the proceedings 
can t>e brought against a {tcrtion who failed to get in a debt to the 
estate from a third person or even from himself, supposing the 
debt in now extinguished by lapne of time ; that is, at any rate, if 
it was in his power to <lo HO* & AH for the words "where any 
peraowi nhould have laid hands on the goods/* the decree here 
refers to depredators, that in to nay, pernoim who lay hand* on the 
goods knowing that the inheritance does not belong to them, in 
tthort, having no good ground for biking powenHion, 4. With 
regard to profited it in held that they will have to make good not 
merely what they realized but what they ought to have realized. 

* dol {*<?*<;*. u> 



TIT. m] Action for recovery of inheritcmce 351 

5. TJJie decree is referring to the case of a person who lays hold of 
goods belonging to the inheritance having at the outset predatory 
intentions. Where a man however at the outset had some lawful 
ground for taking possession, but afterwards, having become aware 
that the inheritance in no sort belonged to him, thereupon con* 
ducted himself in predatory fashion, the decree says nothing 
directly about him ; nevertheless I ahould say that the intention 
of the decree includes this case too ; it makes very little difference 
whether a man acted with malice in respect of the inheritance from 
the very first or only began to do so later on* 0. With regard to 
the party's knowing that the inheritance does not belong to him, 
is a man held to be in this position simply where he know* the 
facts of the cane, or do the words not exclude one who in mifl- 
takeu about the law 1 ? He may have thought that a testament 
waft made in due form when it wan really void, or thut the 
succession <tb hdwtiito was open to him in preference to Home 
other agnate who really preceded him. ! should say that a man 
is not a depredator who has no wrong intention, though he should 
be mistaken about the law. ?. The decree proceeds : ** though 
they 8 contrive before joinder of issue " eta The rcaaon why these 
words are added is that after joinder of issue, indeed after pro- 
ceedings are begun, every possessor is at once nuda fide. It is 
-true that in the decree of the senate joinder of issue alone is 
referred to, but, in spite of this, as Boon OH ever proceedings are 
commenced, all possessors are on the name footing and are liable 
as depredators ; and this is the present practice ; as soon as tbe 
party IB challenged he knows from that moment that he is in 
possession of something which does not belong to him; and 
when a man is a depredator, he will be held liable on the ground 
of dolus even before joinder of issue ; it would be a case of past 
dofa& 8. "Judgment" it proceeds "ought to be passed upon 
them just as much as if they were in possession," This is quite 
right; where a man contrives fraudulently to avoid being in 
possession, he is liable to adverse judgment just as if he were 
IB possession. This rule holds equally, whether he contrives 
fraudulently to cease to possess or to avoid taking possession* 
The above clause will apply whether the thing is fai the possession 
of some one else *r fait ceased to ecdrt at all ; hence if some one 
else is possessor, the ptHtio htrtditati* can be brought agate* 

1 Adfumtm: tha text **kf whether ti wordi tnctade one who 
know the law w well M oae wh& Inowt the f*oU, which it abtcrd, if J 
do* not include M * X**&fttrfat for /writ Ot ft 




352 Action for recovery of inheritance [BOOK v 

both persons alike, and if the possession passes from o$e to 
another through a number of persons in succession, they will all 
be held liable. 9. Is it however only the person in possession 
who will have to pay over mesne profits, or is it equally one who 
contrived to avoid being in possession ? As to thin, after the decree 
of the senate, we are bound to nay that both are liable. 10, The 
above words of the decree allow of an oath being employed in an 
action even againnt a man who in not in possession, as a plaintiff 
may swear to the amount junt a much where the defendant con- 
trived to avoid being in possession an where he is in possession, 
11. The senate consulted the interests of Ixmujid? POMORHOIH so 
far aw to secure that they should not have to bear the IOHH to the 
full extent, but only be obliged to pay to the extent to which 
they are enriched. Accordingly, any expenditure which they have 
made out of the inheritance itself, an by squandering anything or 
loning anything, thinking all the while that they wore making away 
with their own property, they will not have to make good Again, 
if they give anything away, they will not be held to be enriched 
with reference to Hticli property, though they put Home one under 
a natural obligation to requite them. No doubt if they have 
received Home donation in return, then it must be waul that they 
are enriched to the extent of the gift HO received ; the CUHO would 
be much the name thing JIB a kind of exchange. 12. Where a maiv 
HpendH MB own money more lavinhly in cowideration of hit* having 
come in for an inheritance, Mareellun holds (/>%. 6) that he will 
neverthclewH have to hand over the estate without any deduction, 
if he han loft the inheritance untouched l& The name rule holdu 
if he borrowed money, an though he were well off, [but] deceived 
himself in the matter. 14, If however he pledged for debt thing** 
forming part of the inheritance, we may fairly tink whether the 
inheritance IH touched even then ; but it can hardly be Haiti that it 
i, m he in personally liable for the debt 15. Bo true in it that 
a wan in not held liable who i not enriched, that in a awe where 
a man [in uiade heir to half an inheritance and 1 ), thinking himself 
to be note heir, wantcH with no diwhoneHt intent half the ewtate, 
Mareellus clincuMHOH the qucHtion (/% 4) whether he fa not free 
from any liability on the ground that what he npenfc came out of 
what did not belong to him but to 1m cohoira ; IUH point being that 
even where a mau who in not heir at all wawten all he had in hit* 
hands, whatever it wati, there IB no doubt that he in not liable, on 
the ground that he fa not the richer* As to the question itself, 

* Of. M, 



TOT* ra] Action for recovery of inheritance 358 

thercybeing three views suggested, one the view first mentioned 
[viz. that the party in question is not liable at all], then a second, 
viz* that it may be said that he ought to hand over all that 
remains in his hands, on the ground that what he spent was his 
own share, thirdly the view that the amount lost ought to be 
charged equally on both shares, Marcellus says that he certainly 
ought to hand over something or other, but he is in doubt whether 
to say that ho must hand over the whole or a part- However 
I should say that he in not bound to hand over the whole balance 
remaining in his hands, but a moiety thereof. 10. When a man 
has spent part of an inheritance [under the above circutitHtanceHJ, 
will the whole loss fall ou the estate, or will a proportion come out 
of his private property 1 ? SuppoHe, for iuHtanoe, the jWHwenrtor 
drinks up the whole stock of wine belonging to the entate of the 
deceased : will the whole amount be charged on the inheritance, or 
will something be charged to the man's owit property The latter 
construction would of course imply that he wan held to be the 
richer by whatever amount it was he was in the habit of spending 
[on winej before the inheritance came to him ; so that if he began 
to spend on a more liberal scale in consideration of the inheritance, 
he would not be regarded as the richer to the extent of such 
excess, but he would be so regarded to the extent of hi* habitual 
outlay ; since granting that [except for the inheritance] he would 
not have Bpent hi such a lavish style, still he would anyway have 
spent something or other on daily meals. The Divine Marcus 
himself, in the case of one Pythodorus, who had been requested 
to hand over so much of the inheritance as might remain in his 
hands, decided that OH to things which had been disposed of with* 
oat any design of diminishing the fldeicommi*ary gift and the 
price of which had not gone to augment Pythodorua'e private 
egtetoy the loss must fall both on his private estate and on the 
Inheritance, not on the inheritance alona Consequently in the 
&bo** sate it will be a point to consider whether the poewwor's 
u*nftl dttfiay IB to come out of the Inheritance in accordance with 
the rescript of the Divine Marcus, or oat of his own pocket alone, 
and the b^tt^r opfrioa i that thoee expenses muet come out of his 
owm pocket whioh ha woujd have lectured even if he bad not been 
heir, 17. Agafa if tht bona jftto poactMor hag made a gale aad 
is not the richer by the purchase mooey, can the plaintiff in 
petitfo herdditofo recover tke separate articlet from the 
turning that they hate not been acquired by raw f 

1 Red pairimc*io tor#*rw*m. Of. M, et 
M.J. 




354 Action for recovery of inheritance [BOOK v 

attempts to do so, is he not liable to be barred by an ex^eptio 
such as this: "so far as the question of heirship would not be 
prejudged as between the plaintiff and the [defendant's] vendor," 
on the ground that the petitw hereditntis cannot be held to 
comprise the purchase money of the things in question, although 
the purchaser, if the cane goes against him, has a claim to recoup 
himself at the expense of the vendor. To this I should say that 
the thing can be recovered, unless the purchaser can come down 
'upon the bona Jitle IMWHWOT*. How will it be however if the party 
who sold is prepared to defend the case on the pciitfa so as to let 
himself bo sued as though he were in possession ? In this case 
an wm'ptio would at once be admissible on the part of the 
purchaser, There is no doubt that if the things were sold for a 
small price and the plaintiff in the pctlt.lo recovers the money, 
whatever the amount, then much more may it be said that there 
is a good MiMiriM against him [on the part of the jmrchoHorj; 
since the law in, HO Julianun inform** UH (/>///, b. <1), that where 
the poHHCSHor pays the plaintiff in the iwtitfo the money which 
lie haw hiwHoIf got in from debtors to the estate, these latter arc 
(Uncharged, whether the party who got the debta in WHS a hona 
poHHCHwor or a <lt k pralator, and they are discharged directly 
^o fare). Itt. A petit io Iwwdittttw, though it in an action in 
/vw, Btill IH a means of enforcing Home personal performances , 
for inHtanee', the payment of money received from debtor^ also 
the pnreluiHe money of things Hold. 19. The above decree of the 
senate, though it wan made in aid of the pvtith fwwdittttfa in 
held to l>e applicable to the action ft&ntfw* Gre>itir*nutht* f elne we 
nhould have thin absurdity that there might in respect of the H*unc 
thing l>e an action to recover ifc but not an action to divide it 
0. The young of flocks and eattle go fco increase the inherit- 
ance ; 

26 PAUUW (<w the ffitlct 2(ty and if lanibn an born, and after- 
wards others born of the first, the latter U!KO nnint l>e handed over 
iw an accretion to the estate. 



27 0L?3EAKt;H (on the Edwt 15) The children of female 
and the children of their female children arc not regarded UH profit**, 
because it fn not a usual thing for female Hlaven to l>e procured with 
a view to the breeding of children, Btill *mch children go to increase 
the inheritance ; and there Iw no doubt* weeing that they all fall 
into the estate, that the ixxmcBBor SB bound to hand them over, 
* Jfortmp* toturtfototod Of* M, 



TIT. ra] Action for recovery of inheritance 355 

supposing that he is in possession of them, or that, after the 
petitio was brought, he fraudulently contrived to avoid being in 
possession. L Again, rents which are collected from lessees of 
buildings will be comprised in the petitio heredita